Hess v. Slutsky

224 Ill. App. 419, 1922 Ill. App. LEXIS 285

Opinion

Mr. Justice McSurely

delivered the opinion of the court.

This is an undefended appeal from a judgment on a verdict for $35 in a suit brought by plaintiff for medical services rendered to the minor child of defendant and Frieda Slutsky, his divorced wife.

The evidence shows that defendant and Frieda Slutsky were divorced by a decree of the circuit court of Cook county on February 25,1918. The mother was given sole custody of the child and defendant, Slutsky, was ordered to pay her $10 a week for alimony and support of the child. Frieda Slutsky, after the divorce, married Jacob Yanofsky, and the divorce decree was thereupon modified so that defendant was ordered to pay $5 a week for the support of the child, who continued in the custody of her mother. The medical services in question were rendered thereafter, and it is not claimed that the defendant requested that they be rendered, or ratified them, or contracted the obligation in any way. In fact the defendant denied that he requested these services, and claimed that he had never seen the doctor and did not know him. The case was submitted to the jury under instructions that there was a family relation existing which obligated the defendant, and the jury were ordered only to inquire as to the reasonableness of the bill.

The action was under the family expense section of the statute (15), chapter 68 (Cahill’s Ill. St. ch. 68, ¶ 15).

Upon the record plaintiff was not entitled to recover. Where a decree of divorce awards the custody of a minor child to one parent, the other parent is not liable for the medical services to the child in the absence of an express promise or facts or circumstances from which a promise can be implied. Meling v. Lamb, 202 Ill. App. 39; Steele v. Leyhan, 210 Ill. App. 201.

It has also been held that before a plaintiff may recover under the family expense statute, there must be a family in fact, and that the statute does not apply where the parents are divorced. Schleginger v. Keifer, 30 Ill. App. 253; Rand v. Bogle, 197 Ill. App. 476.

As under the law and the undisputed facts plaintiff is not entitled to recover in this suit, the judgment is reversed and judgment of nil capiat is entered in this court.

Beversed and judgment of nil capiat.

Dever, P. J., and Matchett, J., concur.