Ryder v. Perkins

De Courcy, J. The decree in the divorce libel of Nellie M. Perkins v. Harry IC. Perkins, so far as material to the present action, ordered that the Iibellee should pay “the sum of ten dollars ($10.00) per week for the support of the two children named in said libel, and further the expense of necessary medical attendance to be rendered to said children by Dr. Burley.” By reason of the death of Dr. Burley, such medical attendance as was necessary for the children was being rendered by Dr. Johnson, with [527] the consent of both parents. Dr. Burley was, and Dr. Johnson is, a general practitioner. The plaintiff is an eye specialist, and was employed by the mother on the recommendation of Dr. Johnson to prescribe for one of the children, who had some trouble with his eyes. It is stated in the exceptions that the employment of the plaintiff was unknown to the defendant and without his request or sanction. It is not contended that Dr. Johnson had any greater authority to bind the defendant than he would have had if the decree had been modified and his name had been substituted therein for that of Dr. Burley. The decree in the divorce case gave the custody of the children to their mother, Nellie M. Perkins. Thereafter the legal liability of the defendant for their support and care was dependent upon and limited by the terms of that decree. Brow v. Brightman, 136 Mass. 187. If the decree had provided that the defendant should pay “the expense of necessary medical attendance to be rendered to said children,” and stopped there, the plaintiff doubtless could recover, as admittedly the services he rendered were necessary and the charges reasonable. But the decree expressly limits the defendant’s liability to the payment for services that should be rendered by Dr. Burley. The agreement of the parties went no further than to substitute Dr. Johnson for Dr. Burley. There is no ambiguity or uncertainty about the meaning of the decree. Unless and until it is modified by the Superior Court the defendant is not legally liable for the services of a specialist, rendered without his consent, and he was entitled to the rulings requested. The entry must be Exceptions sustained.