136 Tenn. 69 | Tenn. | 1916
delivered the opinion of the Court.
This is a suit by Wallace, a practicing physician and surgeon, to recover for a surgical operation and attendance on Eva Cox, the seventeen year old daughter of defendant Cox.
Cox formerly lived in Chattanooga, but about three years before the occurrence here involved he had removed to the adjoining county of Bradley. Two of his daughters, Mary and Eva, decided to and did remain in Chattanooga to earn their own living. This they continued to do without aid from the father. The two girls were boarding at the T. W. C. A. building when the younger sister, Eva, became ill. Dr. Wal
Mary Cox testified that Dr. Wallace did not ask her to telephone to the father, and that she did not inform him that she had done so for several days after the operation. The surgeon testifies that in performing the services, he looked to the father for compensation.
Defendant Cox. testified that he failed to hear the name of the surgeon over the telephone; that had he been informed that an incision was required, he wonld have gone to Chattanoga and had the operation performed by another surgeon, with whom he was personally. acquainted; and that he was not asked to and did not promise to pay for the operation.
The operation was successful. Bills were sent to the father, who paid no attention to them; whereupon suit was brought.
The circuit judge, sitting without the intervention of a jnry, held defendant Cox not liable. The court
The liability of a father for necessary medical attention given a child who has not remained as a member of his immediate family is a question upon which the authorities are at least in apparent conflict. Cases fairly supporting either of the opposing rulings of the lower courts may be found, but a number of those holding with the judgment of the circuit court take color from English cases which proceed upon the principle that a father is under only a moral obligation to support his child.
The obligation of the parent to support his child at common law was not well defined, but in this State, it has been held, more nearly in accord with the natural sense of justice, that the obligation is not merely moral, but legal, and enforceable as a legal common-law duty. Toncray v. Toncray, 2 Tenn. Cas., 408.
It therefore follows that if the parent neglect that duty, any other person who supplies such necessary attention to the child is deemed, ordinarily, to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent.
The conflict in the authorities, above referred to, is due in large part to the view the respective courts entertain of the extent in the given case of the emancipation of the absent child.
The emancipation of a minor is not to be presumed, and must be proved; and the burden of proof is on the father claiming immunity because of it. Lowell v. Inhabitants of Newport, 66 Me., 78; Lisbon v. Lyman, 49 N. H., 553.
In our opinion defendant Cox did not successfully carry that burden. Any emancipation indicated by the proof was limited or partial, not general or complete. The effort of the daughter to earn her own support was praiseworthy and tended to lift a burden that rested on the father himself, and the courts should be slow to permit the fact to become a shield for his protection, at least where a ,full emancipation is not shown. The restoration of the daughter in consequence of the surgical operation was itself beneficial to the father, since it gave the daughter ability to further relieve him, unless we are to as
A well-reasoned case in point as to emancipation is Porter v. Powell, 79 Iowa, 151, 44 N. W., 295, 7 L. R. A., 176, 18 Am. St. Rep., 353, where it was held that a father was liable for a physician’s services to his minor daughter, seventeen years of age, attacked by typhoid fever, thirty miles from her father’s home, at a place where she had resided for a period of three years, earning and controlling her own wages, and providing herself with clothing, the father not furnishing or agreeing with the daughter to furnish her any means of support, but consenting to her absence from home. The court said:
“There being no direct evidence as to the purpose of the defendant with respect to his daughter, we are to say with what intention he consented to his daughter’s going and remaining away from his home as she did. That he intended she should control her own earnings, at least until such time as he should declare otherwise, is evident; but that it was ever his intention that if, by sickness or accident, she should be rendered unable to support herself, he would not be responsible to those who might minister to her actual necessities, we do not believe. Such an inference from these facts would be a discredit to any father. In our view, there was, at most, but a partial emancipation — an emancipation from service for an indefinite time. The father had a right at any*75 time to require the daughter to return to his home and service; and she had a right at any time. to return to his service, and to claim his care, custody, control and support. There was no such an emancipation as exempted the father from liability for actual necessaries furnished to his daughter. In view of the legal as well as the moral duty of appellant to furnish necessary support to his daughter during minority, and especially when unable, from infancy, disease or accident, to earn her own necessary support, we think he may well be understood as promising payment to any third person for actual necessaries furnished. ... As already stated, what are necessaries must be determined from the facts of each case. What would be necessary support to a child in sickness would not be necessary in health. The services, sued for were evidently necessary'for the support and well-being of the defendant’s daughter.”
That there was in the case before us no complete emancipation, freeing the parent from liability for such necessary attention, is manifest from his own testimony, which shows he stood ready, in one aspect, to impose his own will as to the employment of another surgeon, preferred by him, and by the further fact that the daughters appealed to him for consent to the operation, which he gave.
The modern tendency among women and girls to earn a living, frequently gives occasion for absence from home, and that fact should not readily be held
Thus, if a minor daughter is from home for temporary employment, leaving part of her clothing and bedding at home, even though she received wages for her labor for. her own use, it is not so uncommon an occurrence as to authorize an inference of such a change in the parental and filial ties as to constitute' an emancipation. Searsmont v. Thorndike, 77 Me., 504, 1 Atl., 448.
"We have in this case no element of abandonment of the parent by the child, or defiance of authority by the latter, and no placing of herself under the protection of another. The ruling in the case of Toncray v. Toncray, supra, is not in point. There the suit was by a pure volunteer, and some of the. elements just noted appeared.
We, therefore, are of opinion that in the circumstances, showing only a partial emancipation and the assent of the father to an operation being performed, there arose a promise on his part to pay, implied by law.
The proper result was reached by the court of civil appeals, and its judgment is affirmed.