On certification granted to the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J.
I. THE FACTS AND THE ISSUE
Barbara Slate, the 17-year-old daughter of the defendants, injured a foot while playing basketball at high school. Within two or three days it became exceedingly swollen and conspicuously discolored so that she could walk on it only with the greatest difficulty and pain. Her parents, thinking it nothing more than a sprain, declined to provide her with medical aid. The plaintiff, Garfield, a member of the bar of this State, discovered her plight by chance, when she was on a visit to his home in company with Berkley Badgett, his housekeeper's son, who was courting her.
Mr. Garfield promptly sent young Badgett, his mother and Barbara to the nearby office of the plaintiff, Dr. Sidney Greenspan, who discovered from X-ray plates he made that a bone of Barbara's foot had been fractured. He applied a cast which Barbara wore for about a month until it was removed by Dr. Greenspan. Meantime she used crutches. Barbara lived at home with her parents and the presence of the cast and her use of crutches were thus known to them. Clearly the broken bone that was causing much swelling, high discoloration and great pain necessitating the taking of X-ray plates, the application of a cast for a month and the use of crutches did present an emergency. The testimony of Dr. Greenspan that permanent injury would have ensued if there had not been proper medical care and attention at the time is uncontradicted.
On the completion of his services Dr. Greenspan rendered a bill to the parents of $45, which they have refused to pay. Mr. Garfield thereupon brought suit against them on behalf of Dr. Greenspan or himself in the alternative. At the end of the plaintiffs' case the trial court granted the defendants' motion to dismiss on the ground that Dr. Greenspan had acted without any express authorization from the defendants and that the proofs were insufficient in the circumstances to establish an implied authorization by them. On appeal the Appellate Division of the Superior Court, considering itself bound by earlier decisions in our courts, reluctantly affirmed the judgment below. Because of the public importance of the question presented, we granted certification. 11 N.J. 410 (1953).
The question before us is whether or not the parents of an infant child are liable, in the absence of a contract, express or implied in fact, for necessaries furnished their child in an emergency.
II. THE CONFLICTING VIEWS AT LAW AND IN EQUITY
According to Blackstone, "the duty of parents to provide for the maintenance of their children is a principle of natural law," 1 Bl. Comm. 447. Blackstone waxes eloquent over this principle of "natural law" and quite properly so when the relations of parent and child are normal, but unconvincingly in the only cases with which the law should be concerned, i.e., when the parent fails to perform his natural duty. His reasoning is unconvincing, because in Blackstone's time the parent's duty at the common law was drastically restricted with respect to the method of enforcing it:
"No person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident, and then is only obliged to provide them with necessaries, the penalty on refusal being no more than 20 s a month." Ibid. 449.
Neither the child nor any third party who ventured to supply the child with his necessaries had any cause of action
against the parents to enforce the duty of support which Blackstone termed "a principle of natural law." The utter inadequacy of the common law in this stage of its development is especially manifest in meeting emergencies involving the life or limb of a child.
A parent might, it is true, make his child his agent, express or implied in fact, to make contracts for the child's necessaries:
"If a father does any specific act from which it may reasonably be inferred that he is authorizing his son to contract a debt, he may be liable with respect to the debt so contracted; but the mere moral obligation on the father to maintain his child affords no inference of a legal promise to pay his debts." Mortimore v. Wright, 6 M. & W. 482 (Exch. Div. 1840).
"If a father turns his son upon the world, his son's only resource, in the absence of anything to show a contract on the father's part, is to apply to the parish, and then proper steps will be taken to enforce the performance of the parents' legal duty." Shelton v. Springett, 11 C.B. 452 (Com. Pl. 1851).
provided, of course, the child survives in the meantime! A child's need in these circumstances is quite as great as that of a neglected wife, but his rights and remedies are far less effective than hers, for she has an absolute right to pledge her husband's credit for necessaries, even though there is no agency in fact existing such as the common law required in the case of a child to permit recovery. The law imposes the obligation on her husband for the benefit of the deserted wife without regard to whether or not there was any agency in fact, Strawbridge & Clothier v. Sigle, 73 N.J.L. 419 (Sup. Ct. 1906). The quasi-contractual nature of the husband's duty to a neglected wife is demonstrated by the fact that at common law it survives her death so as to include her funeral expenses, Mondock v. Gennrich, 19 N.J. Misc. 499 (Dist. Ct. 1941).
The impact of these shortcomings of the common law remedy with respect to the maintenance of a child in comparison with that available to a neglected wife inevitably led the law courts to hold, in an effort to achieve a measure of justice, that "the authority of an infant to bind the father
for necessaries may be inferred from slight evidence (italics supplied)." Freeman v. Robinson, 38 N.J.L. 383, 384 (Sup. Ct. 1876). Thus in Fluck v. Tollemache, 171 E.R. 1078 (C.P. 1823) it was said:
"An action can only be maintained against a person for clothes supplied to his son, either when he has ordered such clothes, and contracted to pay for them; or when they have been at first furnished without his knowledge, and he has adopted the contract afterwards: such adoption may be inferred from his seeing his son wear the clothes, and not returning them, or making at, or soon after the time, when he knows of their being supplied, some objection."
But any such artificial basis for a fundamental doctrine as "inferences from slight evidence" is not only unsound in principle but ineffective in operation, because it does not reach the cases where no express promise exists and where there is no "slight evidence" from which to infer a promise, and the cases not so reached are the ones where in simple justice a legal right and an adequate remedy are most needed. There is quite as great necessity for the imposition of a quasi-contractual obligation by operation of law in favor of a neglected child as there is in the case of a neglected wife.
The Court of Chancery within the limit of its jurisdiction was not content to regard the father's duty as a mere principle of natural law, but it has sought to enforce it as a matter of equity. Thus Chancellor Benjamin Williamson applied the prevailing American view as enunciated in Van Valkinburgh v. Watson, 13 Johns. (N.Y.) 480, 7 Am. Dec. 395 (Sup. Ct. 1816), that a parent is bound to provide his infant child with necessaries and that if he neglects to do so, a third person may supply them and charge the parent therefor, in reaching his conclusions in Tomkins v. Tomkins, 11 N.J. Eq. 512, 517-518 (Ch. 1858):
"The position taken by the complainant's counsel is, that a parent is under no legal obligation to support his child, and that whoever furnishes a child with necessaries, must do it gratuitously; that no recovery can be had for such necessaries, unless they were ...