NORTH CAROLINA BAPTIST HOSPITALS, INC.
v.
Melanie Beth FRANKLIN, by her Guardian Ad Litem, C. Thomas EDWARDS.
No. 8925SC837.
Court of Appeals of North Carolina.
July 16, 1991.*816 Turner, Enochs, Sparrow, Boone & Falk, P.A. by B.J. Pearce, Greensboro, for plaintiff-appellee.
Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A. by Robert B. Byrd, Lawrence D. McMahon, Jr. and Sam J. Ervin, IV, Morganton, for defendant-appellant.
PHILLIPS, Judge.
The dispositive issue in this case is whether under the circumstances established defendant child is liable under the necessaries doctrine for the hospital services furnished her by plaintiff. The following legal principles apply: The necessaries doctrine, under which infants, lunatics and others generally incapable of entering into enforceable contracts may be held liable for necessaries, one of which is medical and hospital care when ill or injured, has been a part of Anglo-American jurisprudence since before the time of Lord Coke. E. Coke, First Part of the Institutes of the Laws of England 172a (1836). Under the doctrine an infant who contracts for or obtains necessaries that are not being supplied by his parents or guardian may not disavow the agreement and can be held liable for their fair value, 1 W. Blackstone, Commentaries on the Laws of England *466, Smith v. Young, 19 N.C. 26 (1836); and when an infant or lunatic receives necessaries at the request of others, but not upon their credit, the law will imply a promise by the recipient to pay their reasonable value under quantum meruit. Richardson v. Strong, 35 N.C. 106 (1851). But a child living with its parents cannot be held liable even for necessaries "unless it be proved that the parent was unable or unwilling to furnish the child with such clothes, & c., as the parent considers necessary." Freeman v. Bridger, 49 N.C. 1, 4 (1856). "[T]he mere fact that an infant has a father, mother, or guardian does not prevent his being bound to pay what was actually necessary for him when furnished, if neither his parents nor guardian did anything toward his care or support." Cole v. Wagner, 197 N.C. 692, 696, 150 S.E. 339, 340 (1929). The best view according to one authority is that the necessaries doctrine is quasi contractual in nature, since an infant's contract for necessaries, whether express or implied, is enforceable only to the extent that the amount charged is reasonable. 4 R. Lee, North Carolina Family Law Sec. 272 (4th ed. 1981). The general law appears to be that "to render the infant liable, the necessaries must have been furnished to him on his own credit and not on the credit of others." 43 C.J.S. Infants Sec. 180 (1978). See also 42 Am.Jur.2d Infants Sec. 67 (1969). "It is a well established principle that an express contract precludes an implied contract with reference to the same matter." Vetco Concrete Co. v. Troy Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962) (citations omitted). "When there is a contract between two persons for the furnishing of services or goods to a third, the latter is not liable on an implied contract simply because he has received such services or goods." Id. at 714, 124 S.E.2d at 908 (citations omitted).
Since the record clearly shows that plaintiff's admittedly necessary services for the child were not furnished upon her credit or at her request, but were furnished at the request of the parents, who agreed to pay for them, the judgment holding the defendant child liable has no basis under the foregoing authorities and must be vacated. While the court found, inter alia, that plaintiff did not rely upon the credit of the parents in accepting the child as a patient or in rendering the services, the findings are unsupported by competent evidence and are refuted by uncontradicted evidence that plaintiff is estopped to attack, *817 including the three express contracts it entered into with the parents, the judgment obtained against them, and the testimony of its liability counsellor that the hospital did not rely upon the child for anything, but relied on "the parents to go and apply for Medicaid to cover the expenses." That the parents did not do as the hospital expected (whether because they were ineligible for Medicaid or were misinformed by a Medicaid employee is not clear) did not alter the basis upon which the charges were incurred; and that plaintiff understood this is established by its failure to assert a claim against the child until after it had sued and obtained a judgment against the parents.
The express contracts plaintiff had with the parents and the judgment plaintiff obtained upon them were dispositive of the child's liability under the necessaries doctrine, the only theory sued upon, and defendants' request to so find and conclude should have been granted. Since the charges were incurred upon the parents' credit, the child was not liable for the debt under the necessaries doctrine, 43 C.J.S. Infants, supra; plaintiff having expressly contracted with the parents for payment, a contract between the hospital and the child for payment cannot be implied, Vetco Concrete Co. v. Troy Lumber Co., supra; and plaintiff having elected to obtain a judgment establishing the parents' liability for the debt under an express contract, it cannot recover the same debt from the child upon quasi contract grounds. Irvin v. Harris, 182 N.C. 647, 109 S.E. 867 (1921).
Plaintiff relies, as did the court, upon the statement in Cole v. Wagner, 197 N.C. 692, 150 S.E. 339 (1929), as to a child being liable for necessaries when the parents do nothing to obtain them, but the parents here, unlike those in Cole, did do something. They did everything that any parent could possibly do for its child in regard to the necessaries except pay for them after the debt was incurred. They were living with, caring for and supporting the child; they arranged for the child to obtain the necessary hospital care both in Morganton and Winston-Salem; they assumed responsibility for the charges and contracted to make small monthly payments on them; and they submitted to the entry of a default judgment against them. Sifted down, the question really is did the inability of the parents to pay their debt to the hospital make the child liable for it under the necessaries doctrine? No authority of which we are aware holds that it did; and we hold that it did not. To hold otherwise, as the court in effect did, would make children the guarantors of their parents' debts for clothes, lodging, schooling, medical care and other necessaries. Heretofore the necessaries doctrine has not had that scope, and guaranties have not been established in that manner.
Since the child's liability under the necessaries doctrine has not been established, the trial court's findings and conclusions that the expenses of her treatment at plaintiff hospital were a substantial factor in obtaining the $15,000 that the Clerk of Court holds for her have no bearing on the necessaries issue, but they are erroneous in any event. In effect, the court found and concluded that when the recovery was obtained defendant's father was no longer in the case, the judgment was entered only for the minor defendant, and that a major factor in her recovery was the expense of her care at plaintiff hospital. But the record shows without contradiction that: The father was still in the case, and his dismissal was not filed until after the consent judgment was filed; the child did not sue to recover medical expenses and the judgment does not indicate that any medical expenses were awarded to her; Wayne Franklin sued to recover the child's hospital and medical expenses; the judgment was that Melanie Franklin and her father, Wayne Franklin, "recover $25,000 of defendant," and that $5,000 of that amount, less attorneys' fees, be allocated to him for her medical expenses, and $20,000, less attorneys' fees, be allocated to her. And while her doctor did not expect defendant to have any permanent disability, her injuries were not inconsequential and certainly were worth the $20,000 received; inter alia she had a fractured spine which required two extensive surgeries, one to insert an internal fixation device in the spine, and the other to remove it. In entering the judgment the judge, of course, knew that the *818 child was not entitled to recover medical expenses, and since the judgment is presumed to be lawful and the record shows that it was, it can only be construed as a recovery by the child of $20,000 in settlement for her injuries and a recovery by Wayne Franklin of $5,000 in settlement of his suit for her medical and hospital expenses.
Reversed.
HEDRICK, C.J., and DUNCAN, J., concur.
Former Judge DUNCAN concurred in the result reached in this case prior to 30 November 1990.