Stimpson v. Hunter

Jenney, J. Harold Hunter, the minor son of the defendant, came to the plaintiff, a dentist, for professional work. There was evidence that he was then between seventeen and eighteen years of age; that “his teeth needed attention very much;” and that while there was not “any immediate suffering on his part,” the condition of his teeth could not have continued long without injury to his health. The plaintiff testified that he “put in . . . eight amalgam fillings, two cement fillings, eleven enamel and three porcelain teeth, and treated the roots of four.” The work commenced on October 27, 1917, and continued from time to time until May 4, 1918. It was not contracted on the father’s credit, but was charged to the son personally, nothing being said about payment by his father or indeed by any one. The father’s name then was unknown to the plaintiff. Shortly after the completion of the work, a bill was sent to the son and, no response being made, the plaintiff ascertained the name of the father and sent bills to him. The evidence justified a finding that some of the bills sent to the father were made to the son. One of the bills made to the son and sent to the father had indorsed thereon: “Will you kindly let me have the above amount this month?” This was returned by the defendant to the plaintiff with the following words written thereon by him: “You wont get any money on this bill for quite some time yet. Fred N. Hunter.” On December 1, 1918, a bill which might have been found to have been made to the defendant was mailed to the son. It did not appear when this bill was called to the attention of the defendant, but he produced it in a mutilated condition at the trial. The writ was dated December 10, 1918. There was no evidence that the defendant knew that his son was receiving the services and it did not appear that the son was living at home, was in school or at work. There was nothing to show that the father had not been willing to have his son’s teeth cared for in a reasonable manner, or that he had not amply provided for such attention as was reasonably within his means. [64] On the other hand there was no evidence that in fact the father knew of the condition of the teeth or that his lack of knowledge was caused by any negligence on his part. This action was brought in the Central District Court of Worcester, and the father and son both testified in that court. They were present at the trial in the Superior Court, but did not testify, the defendant resting his case on the plaintiff’s evidence. In order to maintain the action, it was necessary for the plaintiff to establish "... either that the work done was authorized by the defendant, or that it was necessary for the health and comfort of the defendant’s minor son, and that the defendant negligently failed to provide for him a dentist, or means to procure the services of a dentist, to do the work. ” Lamson v. Varnum, 171 Mass. 237,238. The judge submitted three questions to the jury which are quoted above. These questions embraced all the issues involved in the question of liability but did not require any finding as to amount. The defendant excepted to the submission of questions one and three, but did not except to the second issue, or to the instructions given relative thereto. The affirmative answer to this question established the necessity of the work for the health of the son. Strong v. Foote, 42 Conn. 203. The evidence did not warrant the submission of the first issue to the jury. It did not appear that the defendant was apprised that the work was contemplated or knew of it while in progress; it was not performed on his credit; and there was no special exigency rendering the interference of a third party reasonable and proper. On the facts stated, it could not be found properly that the defendant authorized the work. Bodge v. Adams, 19 Pick. 429. Angel v. McLellan, 16 Mass. 28. Lamson v. Varnum, supra, is not an authority for the plaintiff. In that case, the minor directed the charge to be made to his father in whose family he then lived, and statements of the charge were sent to the father. No reply thereto having been made, it was held that the jury might consider whether the father would have been likely to have made some answer if the bill had beén contracted without his authority. The plaintiff also relies on Auringer v. Cochrane, 225 Mass. 273, but in that case the finding for the plaintiff was upheld as to goods furnished after notice that his wife and daughter were dealing with the plaintiff on his credit, because the silence [65] of the defendant after such notice authorized an “implied understanding . . . that he would be responsible. ” In this case no such facts appeared. Neither does Vaughan v. Mansfield, 229 Mass. 352, help the plaintiff, as in that case there was evidence ■warranting a finding that the defendant knew of the services which were being performed and made no objection. The first issue also related to ratification. Apart from the question whether there is any consideration for a promise, express or implied, to pay for services rendered to a son on his own credit, (see Bodge v. Adams, supra; Dearborn v. Bowman, 3 Met. 155,) and apart from the difficulty as to the ratification of an act not purporting to be done, and so far as the evidence shows, not in fact performed in behalf of the father or on his credit, (see New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381,) there was no sufficient evidence of ratification. The only testimony bearing on this subject was that a bill made to the son and sent to the father with a request thereon for payment was returned by him with his indorsement that the plaintiff would not get any payment “for quite some time yet,” and the fact of his silence as to a bill made to him but mailed to the son nine days before the institution of this action, it not appearing that he saw or knew of the bill before the action was commenced. The sending of the bill to the father was not notice that a claim had been or was then made against.him. Therefore his answer was neither an admission of liability nor evidence of ratification. Clearly, too, the bill made to the father but not sent to him or, so far as shown, brought to his attention before suit, was inadmissible to prove liability or ratification, and although admitted without exception or restriction did not in any way support the plaintiff’s case. Kumin v. Fine, 229 Mass. 75. Callahan v. Goldman, 216 Mass. 234. The failure of the defendant and of his son to testify although present in court was not equivalent to affirmative proof of facts necessary to maintain the action. The defendant was not bound to offer any evidence unless and until evidence was offered by the plaintiff warranting the submission of the case to the jury. The exceptions to the submission of the first question, to so much of the charge as related to authorization and ratification and to the effect of the bill of December 1, must be sustained. [66] The exceptions relating to the issue as to the defendant’s neglect must be sustained, as there was no evidence that the father knew or ought to have known of the condition of his son’s teeth or that he neglected to provide for their care. The work was done without any inquiry and without notice to the father although it extended over many months. As Dewey, J., in Dodge v. Adams, swpra, at page 432, says: “There is an entire absence of all those circumstances that would create such an obligation as would furnish a legal consideration for an express promise. The proof of such facts must come from the plaintiff. The burden is on him to show that there existed a necessity for furnishing these supplies, and that this necessity was occasioned by the defendant. The plaintiff having failed to do so, has furnished no sufficient evidence to maintain his action. ” After the answers had been returned, the judge ordered a verdict I for the plaintiff in the full amount claimed and the defendant I excepted. This situation is not likely to exist at another trial, I but even though there was no evidence to meet that of the plaintiff I as to the amount of his charge, the jury were not obliged to find I in his favor for that sum. McDonough v. Metropolitan Life Ins. I Co. 228 Mass. 450. Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8. Walsh’s Case, 227 Mass. 341, 344. The remaining exception has been waived. Exceptions smtained. I