Crane v. Livingston
| Decision Date | 31 July 1950 |
| Citation | 220 P.2d 744,98 Cal.App.2d 699 |
| Parties | CRANE v. LIVINGSTON. Civ. 17552. |
| Court | California Court of Appeals Court of Appeals |
Claude L. Welch, Los Angeles, for appellant.
Wallace, Cashin & Arrington, Harold J. Cashin, all of Los Angeles, for respondent.
A demurrer was sustained to plaintiff's Fourth Amended Complaint without leave to amend, and a judgment of dismissal entered. It is appellant's contention that this complaint which set up three causes of action on the common counts, namely, indebitatus assumpsit, quantum valebat, and for money paid, satisfied the requirements for pleading the common counts; hence, that the demurrer should not have been sustained.
The original complaint alleges that Helen Livingston, divorced wife of respondent, died on September 9, 1949, leaving two minor children, 'who were in her exclusive control and custody by virtue of a (divorce) decree entered in the State of New York, * * * and that plaintiff herein is a sister of said Helen Livingston.' Said complaint alleges that at the request of Helen Livingston who was then ill, 'plaintiff herein took custody of said children and cared for them', and supported the two children until each became of age,--Ruth Livingston, the daughter, becoming of age October 1, 1940, and the son Richard attaining majority on June 10, 1947. Plaintiff asked judgment against the father in the sum of $12,009.35.
A demurrer having been sustained, an amended complaint was filed to which likewise a demurrer was sustained. A second amended complaint dropped the original charge for support of the daughter and sought to recover $8,123.48 for the son's maintenance. This was also held demurrable as was a third amended complaint. Thereafter plaintiff came into court with a fourth amended complaint for the same amount, framed in the terminology of the common counts. To this a demurrer was sustained without leave to amend.
The first count of the Fourth Amended Complaint alleges that defendant 'was indebted * * * for money paid, laid out and expended by plaintiff for the use and benefit of defendant for the reasonable value of necessaries supplied to the minor child of defendant.' The second count alleges defendant's fatherhood, the death of the child's mother, and the furnishing of 'necessities of life of the reasonable value of $8,123.48.' The third count makes similar allegations and seeks recovery of the same amount 'which was paid for the use and benefit of defendant.'
It is argued in appellant's brief that a cause of action exists and has been properly stated by way of the common counts for the reason that 'A promise of a father to pay the reasonable value of necessaries supplied to his child is implied', since there is 'a duty of a father to support his minor child'; that when the father does not provide the support and allows another to do so, such other person may compel the father to repay the amount expended for the child's support.
The respondent answers the above contentions by calling attention to the fact that nothing has been alleged in any of the five complaints filed other than voluntary payments made by a relative of the child with no agreement for compensation by respondent father; that 'There is no promise implied to pay a relative for support of a child.' As authority therefor, respondent quotes Section 208 of the Civil Code which provides that 'A parent is not bound to compensate the other parent, or a relative, for the voluntary support of his child, without an agreement for compensation, * * *.' (Italics added.) Among other cases is cited Blair v. Williams, 86 Cal.App. 676, 680, 261 P. 539, 541, affirming the non-responsibility 'of the father for the support of his children after the entry of an order granting the custody * * * to the...
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