
    JOSEPH M. HARCOURT, Appellant v. ELIZA ENNIS, Respondent.
    
      W7iere the right of recovery is based by the complaint on a specific theory, a recovery cannot be had on another entirely different theory-^Charge, not prejudicial no cause, even if erroneous, for reversal.
    
    The defendant in this action is the wife of Lawrence Ennis from whom she had obtained a separation a mensa et thoro by a judgment of a competent court, before the rendition of the service hereinafter mentioned, to recover the value of which this action is brought.
    The plaintiff was called in to attend one or more of the children of the marriage, the care and custody of whom had by the judgment of separation been awarded to the defendant. The complaint counted on an express employment by the defendant. The question as to whether there was such employment was submitted to the jury on conflicting evidence who found against the plaintiff.
    
      Held, (1) that as the right to recover was not based upon the obligation of a parent to furnish necessaries for his infant children, it was, therefore, not necessary to determine what, if any, obligation rested upon the defendant to supply her children with necessaries or whether the father was relieved from that obligation in consequence of the judgment for a separation.
    (2). The remarks of the judge on the subject of presumption of agency could not have prejudiced the defendant, and there was no error which required a reversal.
    Before Sedgwiok, Oh. J., Freedman and Ingraham, JJ.
    
      Decided January 6, 1890.
    Appeal from judgment entered on verdict of a jury for the defendant.
    At the close of the evidence, the judge charged:—■ “I charge you that the defendant is not liable for the services rendered to those children except as she specially contracted to pay for them, if she did so contract, with this physician, the plaintiff.
    “ If you find that she did make a contract with the physician that she would pay for the services, then she is liable, and yon can find for the physician such an amount as you think would be a fair and reasonable compensation for his services rendered in treating that child.” To which charge defendant’s counsel excepted.
    Plaintiffs counsel then asked the court to charge that the decree of divorce having awarded the custody of the children to the wife, the husband was not liable, as matter of law, for the medical attendance of those children.
    The court refused to so charge.
    Plaintiffs counsel excepted.
    The court then charged : “ The wife, in ordering a physician to attend these children in time of illness is presumed to be acting as the agent of the husband, even though there is a separation between them, if she has the custody of the children.”
    To which charge plaintiff’s counsel excepted.
    The facts out of which the charge, the requests, the refusals and exceptions sprang, are set forth in the opinion.
    
      L. B. Bunnell, attorney and of counsel, for appellant, argued :—
    Even where the husband is bound to furnish support, there must be some abandonment of the child on the part of the father, or a failure, or refusal, to furnish the support, on demand, or request, to that effect, or some .other substantial omission of duty on the part of the father to the prejudice of the child, before the mother can step in and subject him to an action at her suit. Burrett v. Burrett, 29 Barb. 129 ; Rolf v. Abbott, 23 E. C. L. R. 400 ; Raymond v. Loyl, 10 Barb. 483 ; Chilcott v. Trimble, 13 Ib. 502. The rulings of the trial judge were upon the theory that the wife was the agent of her husband, even though she was separated from him by a judicial decree which required the husband to pay and he actually did pay, weekly, all that the court had adjudged to be a proper sum for the support of herself and children. The supreme court held in the case of Baker v. Barney, 8 John. 72, following the case of Todd v. Stokes, Salk, 116, that where the husband and wife separated by mutual agreement, that the husband was not liable for necessaries furnished the wife, and the court held in Hunt v. De Blaquire, 5 Bing. 550, that the same rule applies where the husband and wife are separated by a decree a mensa et thoro, with an allowance to the wife for alimony. Assume that the theory of the judge was correct. Then could the defendant pay for these necessaries, and recover the same from her husband. But the court say, in Burrett v. Burrett, 29 Barb. 129, that this she cannot do. That a divorced wife, under these circumstances stands in no better position than a stranger.
    As a general proposition, and during the continu- - anee of the marital relation, it must be conceded that the husband is liable for the support of the child, but connected with this is the co-relative right to the care, custody, control, services, education and society of his offspring. 29 Barb. 129, supra ; Fitch v. Fitch, 22 Conn. 411 ; Sargeant v. Dunniston, 5 Cow. 106; Hewett v. Price, 21 Wend. 79. It would be not only an oppressive exercise of power, but an outrage upon justice itself, to withdraw a child wholly from the care, control and influence of the father, to deprive him of its presence, society and aid, to put it entirely in the possession and control of the mother, and then require the father, in addition to paying all that the court deemed proper towards her support, require him to pay all the debts she might see fit to contract. The law of nature, which requires a parent to support his infant offspring, designates his own house as the place where that duty shall be performed. 13 Barb. 501, supra.
    
    
      
      Edward J. Dunplvy, attorney, and T. B. Clarkson of counsel, for respondent, argued :—
    In the points or clauses in the charge to which exception was taken by the plaintiff, the law was correctly stated to the jury by the judge, and there was no error in the refusal to charge as plaintiff requested. Kent Com. vol. 2, marginal pp. 191, 193 ; 13 John, 480 ; 26 Hun, 148 ; Code Civil Procedure, §§ 1766-, 1771.
   By the Court.—Ingraham, J.

The complaint in this action alleges, that the plaintiff rendered services as a physician and surgeon for and at the request of the defendant, and that such services were reasonably worth the sum of $245.50. The answer denies these allegations, and alleges, that the services, if. any, mentioned and referred to in the complaint, were rendered to one Eugene Ennis, the infant son of this defendant and her husband Lawrence Ennis, at the request of said Lawrence Ennis.

It appeared in evidence that prior to the time .the services sued for were rendered, an action had been brought by defendant against her husband fór a separation, and a judgment had been entered whereby it was adjudged that the plaintiff and the defendant in that action be separated from bed and board ; that the custody of the children be awarded to the defendant and that the husband of the defendant pay to his wife the sum of $15.00 per week as a suitable allowance to the said Eliza Ennis for her support, and that, in pursuance of such decree, the defendant lived separate and apart from her husband. No provision appears to have been made by the decree for the support of the children ; but the decree provided that the defendant’s husband should pay “ for all necessary and suitable clothing, etc., for the above-named children of the plaintiff and defendant, and also for the proper education of said children at a school or schools to be selected by the said plaintiff; and that the said plaintiff shall in no event be required to pay out of the allowance hereinbefore granted to her, the expenses incurred in providing suitable clothing, etc., and for the proper education of the children or any part thereof.”

The obligation of the defendant to pay for the services rendered by plaintiff is, by the complaint, based upon her express agreement; and to entitle plaintiff to recover he must show that such an agreement existed. The right to recover is not based upon the obligation of a parent to furnish necessaries for his infant children, and it is not necessary, therefore, to determine what, if any, obligation rested upon the defendant to supply her children with necessaries, or whether the father was relieved from that obligation in consequence of the judgment for a separation. It appeared that prior to the first visit by the defendant, the father called upon him and requested him to visit the children, and that the services for which this action was brought were rendered subsequent to such request. The plaintiff testified that on his second visit he told the defendant it was a serious case ; that it would require a great deal of attendance, and that it would put him to a great deal of inconvenience ; that she said, “that she knew that, but that she would settle it herself ; she would pay for it herself.” This conversation the defendant denied. She said that after the child was taken sick she sent to her husband and asked him to send a doctor, and nothing was ever said between herself and the doctor as to who should pay.

The court submitted the question to the jury as to whether the defendant made the contract testified to by plaintiff, and the jury, by -their verdict for the defendant, found that the contract as claimed by plaintiff was not made.

It, therefore, appears that the original request to the plaintiff to render the services came from the husband, the father of the children, and it was in compliance with such request that the services were rendered ; for such services the father only is liable. Some visits appear to have been made subsequently, in September, 1876, but there is no evidence that such services subsequently rendered were at the defendant’s request, or that she agreed to pay therefor.

In the absence of an express agreement by the defendant to pay for the services rendered, we do not think that the defendant was liable in this action, and the jury, by their verdict, having found that no such agreement existed, there is no theory upon which the plaintiff could recover. The remarks of the court, therefore, as to the presumption that the defendant acted as the agent of the husband were entirely immaterial, and could not have prejudiced the defendant.

We think, therefore, that no error was committed that requires a reversal of the judgment, and that the judgment and order denying the motion for a new trial should be affirmed with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.  