Monk v. Hurlburt

SiebeckeR, J. The objection to the amendment of the complaint after verdict, upon the ground that it operated to defendant’s injury, is not sustained. It appears that the parties litigated the questions embraced in this amendment at the trial, both before the justice and in the circuit court. By allowing the 'amendment the court did no more than to conform the pleadings to the proof, pursuant to the provisions [45] of sec. 2830, Stats. (1898). All the facts embraced in this pleading were before the court. Under snch a state of the case the action of the court in no way injured the appellant, was promotive of jirstice, and is abundantly supported by the adjudications. See the following cases and those referred to therein: Gates v. Paul, 117 Wis. 170, 94 N. W. 55; Kleimenhagen v. Dixon, 122 Wis. 526, 100 N. W. 826; Hopkins v. C., M. & St. P. R. Co. 128 Wis. 403, 107 K W. 330. The contention is made that the facts and circumstances shown do not establish defendant’s liability for the professional services plaintiff rendered for Murray, defendant’s stepson. The facts of the case sufficiently appear in the foregoing statement and need not be repeated. The jury found that the defendant stood in the position of parent to his stepson, that plaintiff had reasonable grounds for believing that this relation existed, that the defendant had assumed the obligation of providing the boy with necessaries, and that a special exigency as to the boy’s health existed requiring medical and surgical treatment. It is manifest that the defendant was fully apprised of the boy’s sick condition, that he understood such treatment was necessary, that he knew it was being furnished by the plaintiff, that he interposed no objection thereto, and that he so acted throughout the period of the boy’s illness as to show approval of plaintiff’s course in rendering the services. Under this staté of the facts the defendant’s liability for the value of the services rendered by the plaintiff is fully established, within the principle that the law implies a promise where a parent, with full knowledge of the facts and without objection, allows and approves of his child being furnished with necessaries. We consider the instant case to be within the rule approved in McGoon v. Irvin, 1 Pin. 526, and Zilley v. Dunwiddie, 98 Wis. 428, 74 N. W. 126. The claim that the court erred in not incorporating defendant’s requested questions in the special verdict is not sup [46] ported. The court practically adopted defendant’s question relating to the existence of a special exigency for furnishing medical services. The verdict fully covers all the inquiries suggested hy the rejected questions and embraces the litigated issues in the case. We have examined the exceptions cited to our attention to rulings on evidence and to instructions given the jury. They are not of sufficient importance to require restatement here. No prejudicial error was committed as regards them. By the Court. — The judgment appealed from is affirmed.