Selfridge v. Paxton

McFARLAND, J.

This is an action brought against the-defendants to recover for medical and surgical services rendered to Roma W. Paxton, the infant daughter of the said defendants. The case was tried without a jury, and the court made findings and rendered judgment for plaintiff. From the judgment and from an order denying a motion for a new trial the defendant Blitz W. Paxton appeals.

The facts material to the determination of the case are in brief these: For several years prior to the seventeenth day of September, 1894, defendants were married to each other, and during that time the said Roma W. Paxton was born to them

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as the fruit of their marriage. On said seventeenth day of September, 1894, the defendants were duly divorced by a decree of court. The decree gave to the defendant Bessie the care and custody of the said Boma, providing, however, that the defendant Blitz might visit the child upon reasonable occasions. But the decree had no provision as to the maintenance of said Boma, and had no other provision whatever. After the date of the decree the defendants lived separately —Blitz residing in Sonoma County and Bessie in San Francisco. Boma resided with her mother and was under her custody in San Francisco. The divorce was obtained at the suit of the wife on the ground of desertion. Afterwards, and about March 19, 1900, Boma, still a minor, became severely ill, and at the request of the mother, Bessie, plaintiff commenced attending her professionally, and continued to do so until some time in the following June. He performed on her some difficult surgical operations. His services were necessary and their value was as found by the court. The first surgical operation was performed a day or two after plaintiff was first called to attend Boma, and on March 22d he wrote to the defendant Blitz informing him of Boma’s serious illness and of the operation; and he received a reply dated March 30th, in which said defendant acknowledged receipt of plaintiff’s letter and said that he would be obliged if plaintiff would advise him of any change in the patient’s condition. Plaintiff at the time he rendered the services knew of the said decree of divorce, and that Boma then was, and for several years theretofore had been, living with and in the custody of the mother under said decree.

The foregoing are perhaps the only facts necessary to be •considered, but the following facts also appear: On the day of the divorce the defendants Blitz and Bessie entered into a written contract, which in brief is as follows: Beference is made in the contract to the pending action for a divorce, and Bessie agreed to take upon herself the maintenance of the said Boma, and also another child of the parties, and Blitz agreed to give her $5,620 in money, which he did then give her, and to pay the premiums on and make certain disposition of a certain policy of insurance, and to pay her, in addition, for the support of the children, $13,200 in installments of one hundred dollars each month until the whole should be paid,