Westrate v. Schipper, Docket No. 106, Calendar No. 40,029.

Docket No. 106, Calendar No. 40,029. | Mich. | Jun 6, 1938

Plaintiff sued Sophie Schipper, formerly Sophie Tanis, for payment for medical services rendered. On December 4, 1931, when defendant was under 16 years of age and living at the home of her parents, she and another girl, also a minor, were injured by an automobile owned by Harry Vredeveld and driven by Harry Brower, an employee of Jacob Eding. Defendant was taken to a hospital where she remained unconscious for nine days. Obviously she was not in such a condition that she could make a contract with anyone. Plaintiff was called immediately, apparently by the hospital authorities, to attend defendant. His bill for $395.18 is unpaid. A nurse was also called in at the time and her bill for $142.14 is unpaid. Another physician specializing in ophthalmology was called in by plaintiff. His bill of $74.98 also remains unpaid. Another doctor also assisted plaintiff and subsequently performed an appendectomy on defendant, and there was $442.53 due him. Over five years after these services were rendered, plaintiff took an assignment from the other two doctors and the nurse and brought this suit against defendant for the aggregate of all the claims.

Much litigation has ensued since the accident to establish liability therefor. The case of Tanis v. Eding, 280 Mich. 440" court="Mich." date_filed="1937-06-07" href="https://app.midpage.ai/document/tanis-v-eding-3497084?utm_source=webapp" opinion_id="3497084">280 Mich. 440, finally resulted in the affirmance of a judgment in favor of defendant against Eding and Brower. Shortly after the opinion was handed down, plaintiff brought the instant suit against defendant and also garnishee proceedings against Eding and Brower.

Defendant never asserted any claim against Eding and Brower for payment of medical services required. There may be some question whether the plaintiff and his assignors were not employed by garnishee defendants' insurer and whether they did not look to it for payment for their services. The claim of the doctor who performed the appendectomy was withdrawn after the suit was begun and need not be considered.

Plaintiff declared on an express contract with defendant. Necessarily it could not exist for it is admitted that defendant was unconscious at the time when plaintiff and the nurse were called into the case. The doctor and nurse who assisted plaintiff admit that they were not hired by defendant. Plaintiff asks this court to amend his declaration so as to add the common counts and thus base his claim on an implied contract under 2 Comp. Laws 1929, § 9441 (Stat. Ann. § 19.242) (uniform sales act, § 2), which provides that

"Where necessaries are sold and delivered to an infant, * * * he must pay a reasonable price therefor."

Section 9440, 2 Comp. Laws 1929 (Stat. Ann. § 19.241), however, provides that a "sale of goods is an agreement," et cetera. There certainly could not be an agreement with a person admittedly unconscious and therefore the statute does not apply. We must fall back upon the general rule of the common law which holds that an infant is not liable for necessaries, if he is living with his father who is ready and willing to pay for necessaries. Harris v. Crawley,161 Mich. 383" court="Mich." date_filed="1910-05-07" href="https://app.midpage.ai/document/harris-v-crawley-7945915?utm_source=webapp" opinion_id="7945915">161 Mich. 383; 70 A.L.R. 572 and 71 A.L.R. 226.

The cases cited by plaintiff's counsel do not apply. InRe Dzwonkiewicz's Estate, 231 Mich. 165" court="Mich." date_filed="1925-05-14" href="https://app.midpage.ai/document/in-re-dzwonkiewiczs-estate-3501326?utm_source=webapp" opinion_id="3501326">231 Mich. 165, the infant had been abandoned by his father and was in the custody of his mother, who had been appointed guardian. No reference is made to the ability of the mother to pay for necessaries. It was clear that the father was not willing and able to pay for necessaries. InBishop v. Shurly, 237 Mich. 76" court="Mich." date_filed="1926-12-08" href="https://app.midpage.ai/document/bishop-v-shurly-3493194?utm_source=webapp" opinion_id="3493194">237 Mich. 76, the father was dead and an express contract for medical services had been made which the court held binding under the sales act provision. In the instant case there is no evidence that the father of defendant was not willing and able to pay for necessaries.

The judgment of the trial court in favor of defendant is affirmed, with costs.

WIEST, C.J., and BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.