Bismarck Hospital And Deaconesses Home v. Harris

• Decision Date: 10 June 1938
• Docket Number: 6475
• Citation: 280 N.W. 423,68 N.D. 374
• Court: North Dakota Supreme Court

280 N.W. 423

68 N.D. 374

BISMARCK HOSPITAL and Deaconesses Home, Respondent, v. GORDON T. HARRIS, Appellant

No. 6475

Supreme Court of North Dakota

June 10, 1938

Syllabus by the Court.

1. Under Section 4431 of the Compiled Laws of North Dakota where a parent or child is in necessitous circumstances, and by reason of indigence is unable to provide for himself, it is the duty of the other to furnish relief according to his ability.

2. Under Section 4431, Compiled Laws of North Dakota, a parent or child is liable for actual necessaries furnished to the other, when the person to whom the necessaries are furnished is indigent and unable to care for himself, and the other has the ability so to do.

3. For reasons stated in the opinion it is held that Section 4431 is not a part of the Poor Laws of the state, but was intended to create a legal obligation as between parent and child.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Action by the Bismarck Hospital and Deaconesses Home against Gordon T. Harris for the value of the hospital care furnished defendant's mother during her last illness. From an order overruling a demurrer to the first cause of action of plaintiff's complaint, the defendant appeals.

Order affirmed.

MORRIS, J., dissenting.

Hyland & Foster, for appellant.

The statutory liability imposed upon kindred for the support of their indigent relatives can be enforced only by means of the remedy provided by the statute. 48 C.J. p. 514, § 187 notes 81, 82, and 84, cases cited.

Thus a statute empowering a poor district that performs its duty of relieving a poor person, to enforce the liability of his kindred does not authorize a volunteer to enforce it. 48 C.J. p. 515, § 188, note 89

A son, though under a moral obligation to assist his indigent mother, is under no legal obligation to do so until proceedings have been instituted against him and have resulted in an order compelling him to do so. Pinel v. Rapid R. System, 150 N.W. 897; Condon v. Pomroy-Grace, 73 Conn. 607, 53 L.R.A. 696; Wethersfield v. Montague, 3 Conn. 507.

The duty of a child of sufficient ability to maintain its poor and destitute parents, being an imperfect one, not enforced at the common law, and the statute having prescribed the manner in which it is to be enforced and the extent of the penalty, the statute remedy is the only one to be resorted to. Duffy v. Yordi, 84 P. 838, 4 L.R.A.(N.S.) 1159.

The officers of the poor where the alleged pauper is living must determine in the first instance whether he is really a pauper. Rippon v. Brandon, 80 Vt. 234, 67 A. 541.

No person was to be considered a pauper except such as a justice of the peace had by his order previously so declared. Sayres v. Springfield, 8 N.J.L. 166; Ripley v. McCutcheon, 48 N.D. 1130, 189 N.W. 104.

No law has any effect of its own forces, beyond the limits of the sovereignty from which its authority is derived. Hilton v. Guyot, 159 U.S. 113, 40 L. ed. 95, 16 S.Ct. 139.

State statutes have no extraterritorial effect. Ford, Bacon & Davis v. Terminal Warehouse Co. 240 N.W. 796, 81 A.L.R. 1127; Armburg v. Boston & M.R. Co. 276 Mass. 418, 177 N.E. 665, 80 A.L.R. 1408; New York C.R. Co. v. Chisholm, 69 L. ed. 497, 38 A.L.R. 1048; Sandberg v. McDonald, 248 U.S. 185, 63 L. ed. 200.

At common law there is no duty on the child to support its parents. 46 C.J. 1279, para. 73; Hendrickson v. Queen, 149 Minn. 79, 182 N.W. 952; Mandan Deaconesses Hospital v. Sioux County, 63 N.D. 538, 248 N.W. 924.

Dullam & Young, for respondent.

A quasi contract arises where there is a legal duty to respond in money which by legal fiction may be enforced as on an implied promise, but in such case there is no element of contract so-called but there is only the duty to which the law affixes a legal obligation of performance as in case of a promise between the parties. Wojahu v. National Union Bank, 129 N.W. 1068.

Although based on equitable principles, doctrine of quasi contracts is enforced in actions at law. Horrobin Paving Co. v. Creston, 262 N.W. 480; Pella v. Fowler, 244 N.W. 734.

Sathre, J. Christianson, Ch. J., and Burr, J., and Holt, Dist. J., concur. Mr. Justice Nuessle, being disqualified, did not participate, Hon. Daniel B. Holt, Judge of First Judicial District, sitting in his stead. Morris, J. (dissenting).

OPINION

SATHRE

This is an appeal from an order of the district court overruling a demurrer to the first cause of action of plaintiff's complaint.

The complaint in this action sets forth three causes of action, but only the first cause needs to be considered for the purpose of this appeal. The first cause of action is as follows:

"1. That it is now, and during all the times hereinafter mentioned has been, a corporation, organized and existing under and by virtue of the laws of the State of North Dakota, owning and operating a hospital at Bismarck, North Dakota.

"2. That one Lulu E. Harris, on or about the 7th day of February, 1935, became very ill, and wholly unable to care for herself, and she was removed to the hospital owned and operated by plaintiff at Bismarck, North Dakota, for nursing, care, room, board and such treatment as the hospital could give her; that she was received and remained a patient of such hospital from February 7, 1935 until her death on the 2nd day of September, 1936, and during all of said time this plaintiff furnished her nursing, hospital care, medicine, board and room, all of the reasonable value and agreed price of $ 1,588.30, and that though long since due and payment thereof has been demanded, no part has been paid except the sum of $ 25.00 paid on the 18th day of February, 1936, by the defendant.

"3. That said Lulu E. Harris, during all the times herein mentioned, was a citizen and resident of the City of Bismarck, Burleigh County, North Dakota, and so had been for many years preceding her death; that said Lulu E. Harris was, during all of said time, especially during the time she was a patient of the Bismarck Hospital, as hereinbefore stated, a poor person and unable to maintain and support herself by work; that the defendant is a son of and the only child of said Lulu E. Harris, deceased, and such defendant was, and is, of sufficient ability to maintain his mother during her last illness, and he was and is under obligation to so maintain his mother, but has neglected and refused so to do."

The defendant demurred to the complaint upon three grounds, viz.:

First, that in the three separate causes of action there is a defect of parties defendant.

Second, that in the three different causes of action several causes of action have been improperly united.

Third, that neither of said three separate causes of action in plaintiff's complaint states facts sufficient to constitute a cause of action.

This appeal having been taken from the order of the District Court overruling the demurrer to the first cause of action, it is obvious that the first two grounds need not be considered, since the third ground only is pertinent here, viz., that the complaint does not state facts sufficient to constitute a cause of action.

The trial court overruled the demurrer and based his ruling on § 4431 of the Compiled Laws of 1913, which reads as follows: 4431 -- "Support of the Poor. It is the duty of the father, the mother and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding."

In overruling the demurrer to the first cause of action, the trial court relied on the South Dakota case of McCook County v. Kammoss, 7 S.D. 558, 64 N.W. 1123, 31 L.R.A. 461, 58 Am. St. Rep. 854.

In the South Dakota case the adult children of an indigent person had neglected and refused to contribute to his maintenance and support. In such cases the statutes of that State require the county to furnish the necessary support. This the county did and thereafter brought action against the adult children to recover the amount paid for the support and maintenance so furnished. The action was brought under a statute (S.D. Comp. Laws § 2612) which is as follows: "It is the duty of the father, the mother and the children of any poor person, who is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding."

The section quoted is identical with § 4431 of the North Dakota Compiled Laws of 1913. This statute first appeared in the Revised Codes of Dakota Territory of 1877 as § 97 of the Civil Code, and in the Compiled Laws of Dakota Territory for 1887 it appears as § 2612. It became the law of the state when North Dakota was admitted into the Union in 1889.

In passing upon the question, the South Dakota Court said: "If, under such circumstances, the county, under the direction of the law, furnishes necessaries to the indigent and helpless father, we think, upon principle, it ought to and may recover therefor against the children whose duty it was to furnish the same, but who neglected and refused so to do."

See also Tesch v. Tesch, 65 S.D. 637, 277 N.W. 328.

In the case at bar the action was brought by the plaintiff hospital a corporation, on the theory that § 4431, quoted herein, creates a liability upon the defendant to maintain and support his mother by reason of his relationship to her as her son, and that no express agreement on his part is necessary to create such liability. This statute fixes the reciprocal duty and liability between parent and child, and where the necessity exists, either party may maintain an action against...