                            NO. 4-06-0561                Filed 2/20/07

                     IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

ALEXANDRA PHILLIPS, a Minor, by Her          )     Appeal from
Mother and Next Friend, LORENA D.            )     Circuit Court of
TRAVELL; and LORENA D. TRAVELL,              )     Sangamon County
Individually,                                )     No. 05L149
          Plaintiffs-Appellants,             )
          v.                                 )     Honorable
SHAWN A. DODDS,                              )     Patrick W. Kelley,
          Defendant-Appellee.                )     Judge Presiding.


          JUSTICE APPLETON delivered the opinion of the court:

          Lorena D. Travell sued Shawn A. Dodds for the cost of

medical treatment for her niece, Alexandra Phillips, whom Dodds

allegedly injured in a traffic accident.         Travell claimed that at

the time of the accident, she was in loco parentis to Phillips

and that section 15(a)(1) of the Rights of Married Persons Act

(750 ILCS 65/15(a)(1) (West 2004)), commonly called "the family

expense statute," obliged her to pay the medical bills.         Dodds

moved for summary judgment on the ground that Travell was neither

the parent nor the legal guardian of Phillips.         The trial court

granted the motion, and Travell appeals.         We hold that if one

accepts a child into one's household and stands in loco parentis

to the child, the family expense statute obligates one to pay for

medical treatment the child receives during the relationship.

Therefore we reverse the summary judgment and remand this case

for further proceedings.
                             I. BACKGROUND

           Dodds's attorney took the depositions of Phillips and

Travell.   Phillips testified she was bicycling across an inter-

section in Springfield on August 9, 2004, when a truck struck

her, fracturing some discs in her spine.       She was in the hospital

for two days.    At the time of the deposition, she was 18 and

living with her boyfriend.    But at the time of the accident, she

was 17 and living with Travell, her aunt, who (Phillips believed)

had obtained "legal custody" of her.

           Travell testified that Phillips's mother was dead and

no one had come forward as the father.       In 2003, Phillips was

living with a cousin in Dallas, and the cousin was preparing to

move to Germany.    The cousin "gave [Travell] a paper," which they

signed and notarized, enabling Travell to bring Phillips to

Springfield.      (This "paper" does not appear to be in the

record.)   Travell thereby acquired what she considered to be

"legal custody" of Phillips, who lived with her for the next two

years, until they moved to Springfield.

           Travell considered herself responsible for Phillips's

medical bills.    She testified:    "After the accident[,] all the

bills came to me[,] and then they said I was responsible ***.

***   [W]hen I got to the hospital[,] they had already processed

her admission paper, and they didn't ask me anything, and then

the bills started coming."    The medical bills in the record are


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addressed to Travell.   She had not paid any of them yet.   She

had bought pain medication, however, because Phillips "had to

have that."



                            II. ANALYSIS

          A. The Purpose of the Family Expense Statute

          The family expense statute provides as follows:   "The

expenses of the family and of the education of the children shall

be chargeable upon the property of both husband and wife, or of

either of them, in favor of creditors therefor, and in relation

thereto[,] they may be sued jointly or separately."   750 ILCS

65/15(a)(1) (West 2004).

          When construing a statute, we may consider "the reason

and necessity for the statute and the evils [the legislature]

intended to remedy."    Roth v. Illinois Insurance Guaranty Fund,

366 Ill. App. 3d 787, 794, 852 N.E.2d 289, 294 (2006).   The

legislature passed the family expense statute as a section in the

Husband and Wife Act of 1874 (Ill. Rev. Stat. 1874, ch. 68, par.

15) (Lyman v. Harbaugh, 117 Ill. App. 3d 732, 733, 453 N.E.2d

906, 907 (1983)), copying a similar statute in Iowa (Iowa Code

§2214 (1873), now Iowa Code §597.14 (2006)) (Louis Berman & Co.

v. Dahlberg, 336 Ill. App. 233, 236, 83 N.E.2d 380, 382 (1948)).

At common law, the wife could bind the husband for "necessaries"

only if he gave her express authority to do so or only if the law


                               - 3 -
implied such authority from the husband's "neglect to furnish

articles suitable to her station in life, which said articles

were considered and treated in law as necessaries."      Arnold v.

Keil, 81 Ill. App. 237, 242 (1898).    This rule hindered commerce

and the extension of credit.   In the 1870s, most married women

had no source of income other than their husbands.     Therefore,

selling goods to a married woman on credit could be risky.     The

merchant had to ask himself two questions:   (1) does this woman

have authority from her husband to make the purchase, and (2) is

the item that she proposes to buy a "necessary"?   The family

expense statute eliminated the first question altogether and

changed the second question into "whether the expenditure was

incurred for, on account of, and to be used in the family."

Louis Berman & Co., 336 Ill. App. at 236, 83 N.E.2d at 382.

Family expenses, so defined, were a broader category than "neces-

saries."

           As the Supreme Court of Iowa explained, this change in

the law helped the wife, husband, and creditor:

           "The statute was enacted for the benefit of

           the husband or wife, and person from whom the

           things constituting the family expenses were

           obtained, to the end that credit could be

           obtained and extended for something essen-

           tial, necessary, or convenient, or so deemed


                               - 4 -
          by the husband or wife, to be used in or by

          the family."     Davis v. Ritchey, 55 Iowa 719,

          721, 8 N.W. 669, 670 (1881).

          By interpreting the family expense statute to apply to

persons who, under the common law, stand in loco parentis, we

would remove an obstacle to commerce and lessen the financial

risk of providing medical care to the child, thereby benefitting

the child, the creditor, and the persons in loco parentis (who,

presumably, intend to provide for the child).    Such an interpre-

tation would tend to effectuate the legislative intent of making

adults liable for family expenses if they hold themselves and the

child out as one family.    See Chicago Manual Training School

Ass'n v. Scott, 159 Ill. App. 350, 355 (1911).

         B. The Legislature's Presumed Awareness of the
                  Concept of "in Loco Parentis"

          "'Where statutes are enacted after judicial opinions

are published, it must be presumed that the legislature acted

with knowledge of the prevailing case law.'"     Cargill v.

Czelatdko, 353 Ill. App. 3d 654, 658, 818 N.E.2d 898, 903 (2004),

quoting People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147,

1153 (1994).   We presume that when the legislature passed the

family expense statute, it was aware of Mowbry v. Mowbry, 64 Ill.

383 (1872), decided only two years earlier, and Brush v.

Blanchard, 18 Ill. 46 (1856).    In those two cases, the supreme

court recognized that one could admit a child into one's family,

                                 - 5 -
treat the child as a member of the family, and voluntarily assume

the relation of parent to that child.    Mowbry, 64 Ill. at 387;

Brush, 18 Ill. at 47.   By choosing to be in loco parentis to a

child, one "[stood] in the place of natural parent, and the

reciprocal rights, obligations[,] and duties of parent and child

attach and continue[] so long as this mutually assumed relation

continues."    Brush, 18 Ill. at 47; see also Faber v. Industrial

Comm'n, 352 Ill. 115, 120, 185 N.E. 255, 257 (1933) (same).

Thus, when using the phrase "[t]he expenses of the family" in

1874, the legislature must have known that, under prevailing

decisions of the supreme court, one could create a family--with

"reciprocal rights, obligations[,] and duties"--by standing in

loco parentis to a child.

       C. The Applicability of the Family Expense Statute
                 Outside the Marital Relationship

            By its terms, the family expense statute makes a

"husband and wife" jointly and severally liable for family

expenses.    750 ILCS 65/15(a)(1) (West 2004).   The record appears

to contain no evidence that Travell is married.    Courts, however,

interpret the family expense statute as requiring parents to pay

their children's medical and educational expenses regardless of

whether the parents are married.    Mercy Center for Health Care

Services v. Lemke, 199 Ill. App. 3d 958, 963-64, 557 N.E.2d 943,

946 (1990); Proctor Hospital v. Taylor, 279 Ill. App. 3d 624,

625, 665 N.E.2d 872, 874 (1996); In re Marriage of Bennett, 306

                                - 6 -
Ill. App. 3d 246, 248, 713 N.E.2d 1278, 1280 (1999).   Thus, being

unmarried would not remove Travell from the purview of the family

expense statute.

          D. Travell's Status as a Person in Loco Parentis

            Dodds disputes that Travell was in loco parentis to

Phillips.   According to Dodds, Travell has produced no evidence

that she "[took] on the obligations of a parent" or "assumed the

financial burdens arising out of the relationship of a parent and

child."   We note that in his motion for summary judgment, Dodds

never disputed Travell's status as a person in loco parentis; he

merely argued that because Travell was a nonparent who lacked

legal custody, Travell could not recover the expenses of

Phillips's medical treatment.   In any event, looking at the

evidence in a light most favorable to Travell and drawing all

reasonable inferences in her favor, we find a genuine issue of

fact as to whether Travell stood in loco parentis to Phillips.

See Moore v. Kickapoo Fire Protection District, 210 Ill. App. 3d

736, 738, 569 N.E.2d 214, 215 (1991).   The significance of the

notarized "paper" from Phillips's cousin depends not on its legal

efficacy but on what it reveals about Travell's intent.      Regard-

less of whether the document was legally valid, Travell testified

that she accepted the document in the belief that it was legally

valid and with the intent of assuming custody of Phillips.     In

Phillips's mind, Travell was her legal custodian.   Travell is not


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like the grandmother in Busillo v. Hetzel, 58 Ill. App. 3d 682,

684, 374 N.E.2d 1090, 1091 (1978), who "had custody for only a

few days during the daylight hours."       Phillips lived with Travell

for two years, and we infer that Travell supported her during

those two years, since supporting a child usually goes with

having custody.    Most tellingly, Travell considers herself liable

for the expense of Phillips's medical treatment.

      E. The Duty of a Person in Loco Parentis To Furnish
                   Medical Care for the Child

          The family expense statute makes parents liable for the

medical expenses of their minor children.       Graul v. Adrian, 32

Ill. 2d 345, 347, 205 N.E.2d 444, 446 (1965).      The common law in

turn gives the parents a cause of action against the tortfeasor

who, by injuring the child, caused the parents to incur the

medical expenses.       Worley v. Barger, 347 Ill. App. 3d 492, 495,

807 N.E.2d 1222, 1225 (2004), appeal denied, 211 Ill. 2d 618, 823

N.E.2d 980 (2004).      Section 703(b) of the Restatement (Second) of

Torts provides as follows:

          "'One who by reason of his tortious conduct

          is liable to a minor child for illness or

          other bodily harm is subject to liability to

                  ***

                  (b) the parent who is under a legal duty

          to furnish medical treatment for any expenses

          reasonably incurred or likely to be incurred

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          for the treatment during the child's minor-

          ity.'"   Worley, 347 Ill. App. 3d at 496, 807

          N.E.2d at 1226, quoting Restatement (Second)

          of Torts §703(b), at 510 (1977).

          Dodds is liable to Travell only if Travell had a duty

to provide medical care to Phillips.   "Custodial parents have an

affirmative duty to protect and provide for their minor children"

(People v. Peters, 224 Ill. App. 3d 180, 190, 586 N.E.2d 469, 476

(1991)), and when one "stands in the place of natural parent" (in

loco parentis), "the reciprocal rights, obligations[,] and duties

of parent and child attach and continue[] so long as this mutu-

ally assumed relation continues" (Brush, 18 Ill. at 47; see also

Faber, 352 Ill. at 120, 185 N.E. at 257).    From this unqualified

statement in Brush and Faber, we conclude that as long as the

mutually assumed relationship continues, a person in loco paren-

tis has the same duty to provide medical care for the child as

the child's natural parents would have.    The relationship is

reciprocal:   the child has a duty to render the services that a

child would normally render to a parent, such as by helping out

around the farm (Brush, 18 Ill. at 47), and the person in loco

parentis has a duty to provide for the child as if the child were

his or her own (Mowbry, 64 Ill. at 387).

          In Scott, 159 Ill. App. at 351, for instance, the

defendant had a stepson, Edward, who for some four years had


                               - 9 -
lived in his household.   Edward's mother, Vivian, sent him to a

vocational school at his natural father's expense, but when the

father died, the tuition went unpaid, and the school sued the

defendant for the arrears.    Scott, 159 Ill. App. at 351-52.    The

defendant denied he was liable.   See Brush, 18 Ill. at 47 ("The

husband is not, from the fact of marriage with the mother of

minor children, bound to support them").   The appellate court

held that "if a man took the children of his wife by a former

marriage into his family, he did then stand in loco parentis as

to them[] and was bound by his wife's contracts made for their

maintenance and education."   (Emphasis in original.)   Scott, 159

Ill. App. at 354.   The defendant could have refused to take

Edward into his family (see Brush, 18 Ill. at 47); or, after

taking Edward into his family, the defendant could have termi-

nated the relationship between himself and Edward by announcing

that from henceforth, he would support Edward no longer (see

Brush, 18 Ill. at 47 (the obligation exists "so long as this

mutually assumed relation continues")).    But the defendant could

not retroactively terminate the relationship by repudiating an

expense incurred while the relationship was still in effect--that

is, while the defendant was still holding out Edward, Vivian, and

himself as one family.    Scott, 159 Ill. at 355.

          In the present case (looking at the evidence in a light

most favorable to Travell and resolving all reasonable inferences


                               - 10 -
in her favor), the hospital rendered services to Phillips at a

time when Travell was holding herself and Phillips out as a

family.   Travell could have refused to take Phillips into her

household in the first place, or she could have decided, at some

point, that she no longer wished to stand in loco parentis to

Phillips.    Travell could not retroactively terminate the rela-

tionship, however, to evade liability for medical expenses

already incurred.    Having voluntarily assumed the role of parent,

Travell had "a legal duty to furnish medical treatment" for

Phillips, and she had a corresponding cause of action against

Dodds for the cost of the treatment.      See Restatement (Second) of

Torts §703(b), at 510 (1977).      Travell could not enjoy the

benefits of parenthood without shouldering the expense.

                           III. CONCLUSION

            For the foregoing reasons, we reverse the trial court's

judgment and remand this case for further proceedings.

            Reversed and remanded.

            KNECHT, J., concurs.

            TURNER, J., specially concurs.



            JUSTICE TURNER, specially concurring:

            Although I concur with the conclusion reached by the

majority, I write separately because the majority opinion appears

to conclude Travell did stand in loco parentis to Phillips.


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However, this case comes to us at the summary-judgment stage, and

as our supreme court recently pronounced, "[t]he purpose of

summary judgment is not to try a question of fact, but rather to

determine whether a genuine question of material fact exists"

(Bagent v. Blessing Care Corp., No. 102430, slip op. at 6 (Janu-

ary 19, 2007).   Thus, our analysis in section D should have ended

when we found "a genuine issue of fact as to whether Travell

stood in loco parentis to Phillips."    Slip op. at 7.

          Also, the majority opinion need not cite and should not

have cited the Scott case, a 1911 appellate court opinion.     See

slip op. at 5, 9.    First, appellate court decisions issued before

1935 are not binding authority.    Bryson v. News America Publica-

tions, Inc., 174 Ill. 2d 77, 95, 672 N.E.2d 1207, 1217 (1996);

see also Young v. Bryco Arms, 213 Ill. 2d 433, 451-52, 821 N.E.2d

1078, 1089 (2004).   Second, due to its age, the case has limited

applicability today given the development of family law since it

was rendered and the current complexity of family law.   Last,

regardless of age, the Scott court's general statements regarding

a stepfather's obligation to support a stepchild lend little to

our analysis of the facts before us.




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