Traywick v. Wannamaker

150 S.E. 655, 153 S.C. 146, 66 A.L.R. 703, 1929 S.C. LEXIS 20

• Court: Supreme Court of South Carolina
• Decided: October 23, 1929
• Docket: 12750
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Carter.

For a statement of the purpose of this action, the history giving rise to the same, and the proceedings in the Court of Common Pleas for Orangeburg County, in which Court the action was begun, we adopt the agreed statement of the parties to the cause as contained in the transcript of record:

“This action was commenced by summons and complaint served March 25, 1926. It was brought by the respondent, Edna B. Traywick, against the appellant, Norman M. Wan-namaker, L. A. Hutson, E. C. Mann and the respondent, Dr. C. A. Mobley, to require the appellant, Norman M. Wannamaker, to pay to the respondent, Dr. C. A. Mobley, a bill for professional services rendered the appellant, Norman M. Wannamaker, out of a judgment of seventeen hundred and fifty ($1,750) dollars that was obtained against the respondent, Edna B. Traywick, on account of injuries received in an automobile collision, in the case of Norman ¿M. Wannamaker, plaintiff, against Edna B. Traywick, defendant, March 16, 1925. Answer of the appellant, Norman M. Wannamaker, denies that he is indebted to Dr. C. A. Mobley, for services and hospital expenses or to the respondent, Edna B. Traywick. Answer of the respondent, Dr. C. A. Mobley, alleges that the appellant, Norman M. Warma-maker, and the respondent, Edna B. Traywick, are indebted to him for services and hospital expenses rendered appellant, Norman M. Wannamaker, and that the respondent, Edna B. Traywick, guaranteed the payment of the bill. June 30, 1926, Judge M. M. Mann issued an order, staying the issuing of an execution against the respondent, Edna B. Traywick, in the case of Norman M. Wannamaker, plaintiff, against Edna B. Traywick, defendant. September 4, 1926, Judge Mann issued an order in the case of Edna B. Traywick, against Norman M. Wannamaker, et al., modifying his order issued June 30, 1926, and allowed the respondent, Edha B. Traywick, to pay to the Clerk of Court, the amount of the judgment obtained against her in the case of Norman M. Wannamaker against Edna B. Traywick, ordered that one-half of the amount of the judgment be paid to the attorneys of the appellant, Norman M. Wannamaker, that the balance be held by the Clerk of Court until the adjudication of the rights of the parties and referred the case to Harry E. Moore, special referee, to take the testimony and report it, as taken, to the Court. March 9, 1928, the appellant, Norman M. Wannamaker, gave notice that he would petition the Court on the call of the case for trial, to determine his right to- a homestead in the amount paid to the Clerk of Court, September 16, 1926, by the respondent, Edna B. Traywick, in the case of Norman M. Wannamaker, plaintiff, against Edna B. Traywick, defendant. The special referee took the testimony and reported it to the Court, on or about the 15th day of March, 1928. The case was heárd by Judge M. M. Mann, June 9, 1928, at Orangeburg, South Carolina, in the Court of Common Pleas, for the County of Orangeburg. After argument by counsel, the Court issued an order, refusing to determine the right of ,,the appellant to a homestead or to pass upon the issues between the plaintiff and Dr. Mobley, and directed the Clerk of Court to pay to the respondent, Dr. C. A. Mobley, eight hundred ninety-four and 15/100 ($894.15) dollars, of the amount held by him.”

Prom the said order of his Honor, Judge M. M. Mann, directing the Clerk of Court to pay to the defendant Dr. C. A. Mobley the amount of $894.15, out of the sum held by him, the defendant Norman M. Wannamaker has appealed to this Court, upon exceptions which raise the questions we shall consider.

The whole fight centers around the claim of Dr. Mobley for the treatment given and services rendered the appellant while in the Orangeburg Hospital. We have no hesitancy in stating that we fully agree with the position of counsel for the respondent Dr. Mobley, that Dr. Mobley should be paid for his services. Physicians and hospitals might well be designated chief of the State’s most eminent benefactors, daily rendering immeasurable benefit to its citizens, and deserve to be compensated for such services. While this is true, it does not follow that the respondents are entitled under the law to the relief they seek in this case, and granted them under the order of the Circuit Judge, from which order the appellant has appealed to this Court.

In this action the plaintiff, Mrs. Edna Traywick, in her complaint alleges that the defendant Norman M. Wanna-maker procured a judgment against her for the sum of $1,-750, in a suit which he instituted against her on account of certain injuries he sustained when struck by Mrs. Tray-wick’s automobile, driven by her young son; and alleges that Dr. C. A. Mobley, whom she made a defendant in the case at bar, as above stated, has a claim against Mr. Wanna- maker for a certain sum (later shown to be $894.15) for services for surgical, medical, and hospital services rendered Mr. Wannamaker while he was suffering from the injuries he complained of on account of being struck by said automobile; and further alleged, on information and belief, that Dr. Mobley was making a claim against her'(Mrs. Tray-wick) for his said bill, alleging, on information and belief, that Dr. Mobley claimed she was liable for said bill; and also alleged that the verdict which Mr. Wanndmaker procured against her in the suit mentioned was “for all injuries, sufferings, expenses, surgical work, medical care and hospital bills for the wrongs and injuries referred to in the complaint in the last mentioned action,” and alleged that Mr. Wannamaker should pay the said claim of Dr. Mobley out of the verdict and judgment entered against her in said case, but further alleged “that she does not owe and is not indebted to the defendant, Dr. C. A. Mobley, in any amount whatsoever for said services and expenses to and for the said Norman M. Wannamaker,” but she further alleged “that she is entitled in this action to a judgment requiring the defendant, Norman M. Wannamaker, to pay the defendant, Dr. C. A. Mobley, his bill for said services and expenses out of the judgment entered against her in the case of Norman M. Wannamaker, plaintiff, against Edna B. Traywick, defendant, and that she be allowed to pay said bill for services and expenses out of the said judgment, so that she will not be harrassed with a multiplicity of suits in respect thereto.” In her testimony Mrs. Traywick stated that Mr. Wannamaker procured a judgment against her in the said suit, to which reference has been made, for the sum of $1,750; and, in referring to what transpired when Mr. Wannamaker was taken to the hospital, said: “I called up Mr. Zeigler and asked him to go to the hospital and get the status of the affairs and report to me. Mr. Zeigler reported to me later. I told Mr. Zeigler that I would not be responsible until I knew what the bill would be. I did not authorize Mr. Zeigler to pay any definite amount.”

It will be observed that Mrs. Traywick does not allege, and does not testify, that she has paid out any sum for or on account of Mr. Wannamaker- to Dr. Mobley or any one else; does not allege or testify that she is liable on account of Mr. Wannamaker to Dr. Mobley for any sum, but, on the other hand, she alleges that she is not liable to Dr. Mobley for any sum whatsoever on account of the services rendered Mr. Wannamaker. It is contended by counsel for the respondents that Mr. Wannamaker assumed the collection of the hospital expenses in the suit for damages against Mrs. Traywick, along with the other items of damages sustained by him by reason of his injuries, and attention is called to the fact that it was alleged in the complaint in the damage suit “that the injuries complained of and for which Mrs. Traywick was liable by reason of the negligence of her agent, caused plaintiff to be confined in the hospital for several months,” and it was alleged “as an element of his damages, expenses incurred by him by reason of his injuries.” Attention is also called to the fact that the testimony in the case shows that Mr. Wannamaker was treated at the Orangeburg Hospital by Dr. Mobley, and remained in the hospital several months.

In the answer of Dr. Mobley to the complaint in the action at bar, it is alleged that Mr. Wannamaker was a patient at the Orangeburg Hospital and treated by Dr. Mobley, and that there is due and unpaid on account of the services rendered Mr. Wannamaker by the doctor, and for services and expenses at the said hospital, the sum of $894.15, which Mr. Wannamaker agreed to pay; and that, shortly after Mr. Wannamaker was brought to the hospital, Mrs. Traywick agreed to guarantee the payment to him, Dr. Mobley, for said services. But it is further alleged in the answer of Dr. Mobley that she (Mrs. Traywick) “has guaranteed the payment thereof and she is responsible to this defendant, for.the amount thereof, and this defendant (Dr. Mobley) is not concerned as to how the differences between plaintiff (Mrs. Traywick) and the defendant, TNT. M. Wannamaker, may be adjusted, so long as he is paid the amount of indebtedness due him, as aforesaid.” Dr. Mobley testified as to the services rendered Mr. Wanna-maker following his said injury, and as to the amount of charges for such services; the amount being the same as set forth in his answer. He also testified that, before taking the case, that is, before taking Mr. Wannamaker into his charge for treatment, he had a conversation with'Mrs. Tray-wick’s attorney in regard to the treatment required, and that he (Dr. Mobley) told this attorney of Mrs. Traywick that he would not take the case until he knew who was going to pay for it, and that Mrs. Traywick’s attorney, acting for Mrs. Traywick, told him (Dr. Mobley) that Mrs. Tray-wick would be responsible for the work. Dr. Mobley further stated in the course of his testimony that he did not send, Mr. Wannamaker a bill for the services, for the reason that he was looking to Mrs. Traywick to see that the bill was paid; that he sent the bill to Mrs. Traywick, though the doctor also stated, “There is an inherent bill against Mr. Wannamaker until it is settled,” and also stated in his testimony, “I remember telling him (Mr. Wannamaker) that I wouldn’t send him the bill because Mr. Zeigler told me they would pay it. It is charged against her and if for any reason in this case, she isn’t responsible, I am looking to Mr. Wannamaker for it. The question has not been settled as to whether they are responsible or not. It is an inherent bill against Mr. Wannamaker until it is settled.”

The contention of Mr. Wannamaker, as shown by his answer and his testimony, is that Mrs. Traywick obligated to pay Dr. Mobley for the said services when he was first taken to the hospital, and before any service was rendered, and that he (Mr. Wannamaker) is under no obligation to pay the bill in question.

After consideration, his Honor, Judge Mann, refused to ■determine the right of the appellant to homestead, and also refused to pass upon the issues between Mrs. Traywick and Dr. Mobley, as to whether or not Mrs. Traywick was liable to the doctor for the claim in question. As to the ■other questions involved, his Honor stated his conclusion in the following language:

“Wannamaker assumed the collection of the hospital expenses in his suit for damages brought against Mrs. Tray-wick, along with other items of damages suffered by him on account of his injuries. From the allegations of the complaint and from the testimony introduced at the trial of this case, it is clear that his expenses and hospital treatment were urged as a basis of recovery and'considered by the jury in fixing the amount of its verdict and was a part of such amount. Now, as Wannamaker assumed such collection from Mrs. Traywick and actually did collect damages over and above the amount sufficient to pay his hospital bill and for surgical treatment and used the Court as his instrument in compelling Mrs. Traywick to pay for these items, along with other items of damages, so much of the judgment recovered by him and collected as was necessary to pay the hospital bill and Dr. Mobley for his services was impressed with a trust, and a Court of equity is in duty bound to require these funds to be applied in accordance with the trust so impressed upon them.”

His Honor, Judge Mann, thereupon ordered, adjudged, and decreed that the Clerk of Court, from the funds paid into his hands by Mrs. Traywick, on account of the judgment in the damage suit, pay to Dr. Mobley the said sum of $894.15, in settlement of his said bill for said services.

We are unable to agree to the conclusion reached by his Honor, Judge Mann. As we view the record in the case, the judgment procured in the damage suit could in no sense be impressed with a trust for the payment of the claim in question, neither could the money paid into the clerk’s hands in settlement of the judgment be impressed with a trust for said purpose. Also we do not think it can be assumed and concluded from the pleadings and evidence in the case that Mr. Wannamaker assumed the collection of the hospital expenses and other charges included in the bill of Dr. Mob-ley in his suit for damages brought against Mrs. Tray-wick. Further, in our opinion, the allegations contained in plaintiff’s complaint are not sufficient for granting the relief sought by the plaintiff and granted her under the order of his Honor, Judge Mann,, and the allegations contained in the answer of Dr. Mobley and the testimony in the case do not, in our opinion, furnish grounds for the relief granted.

As to the question of a trust, we may add that we fail to note the presence of any element or condition necessary to constitute a trust. There is no evidence of a direct and positive act of the parties, expressed by the parties in writing by deed or otherwise, declaring the purposes, terms, or provisions of a trust, naming the property involved, or showing that it was the intention of the parties to create a trust. Therefore there was no express trust. Neither can it be said that there was an implied trust. There was no instrument executed by the parties or words employed by them from which it could be inferred or implied that the parties had in mind creating a trust. Also there is no proof of a resulting trust. Such a trust cannot be said to be raised by implication or construction of law, or be presumed to exist or arise, out of the transaction touching the parties involved in this litigation; and there is no fact connected with the case which establishes, or tends to establish, a resulting trust. There is no proof that Wannamaker was placed in a fiduciary position with regard to the fund involved, or that he in any way practiced a fraud on the litigants involved in the case, or that he gained any advantage over them, which would tend to establish a trust relation.

In our opinion, the record does not support the contention that the sum of money in question was impressed with a trust.

It is therefore the judgment of this Court that the order issued by his Honor, the circuit Judge, from which the appellant has appealed to this Court, be, and the same is hereby, reversed, and the complaint in the action dismissed, without prejudice to the parties hereto to institute such actions, .and set up such rights as they may be advised, as to any matter not adjudicated and determined in this case.

Mr. Chiee Justice Watts concurs. Messrs. Justices Cothran, BeEase, and Stabeer concur in result.