Haakon County v. Staley, 7205

• Decision Date: 08 July 1932
• Docket Number: 7205
• Citation: 243 N.W. 671,60 S.D. 87
• Parties: HAAKON COUNTY, Respondent, v. GEORGE A. STALEY, Appellant.
• Court: South Dakota Supreme Court

60 S.D. 87

243 N.W. 671

HAAKON COUNTY, Respondent, v. GEORGE A. STALEY,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Haakon County, SD

Hon. John F. Hughes, Judge

#7205—Affirmed in part; Reversed in part

Danforth & Davenport, Sioux Falls, SD

Attorneys for Appellant.

G.V. Welch, State’s Attorney, Philip, SD

Attorney for Respondent.

Opinion Filed Jul 8, 1932

RUDOLPH, Judge.

Haakon County brought this action to recover from appellant, first, on account of having furnished necessaries of life to the wife and minor children of the defendant for their own use and support, and, second, on account of having provided for the wife of the defendant by means of a mother’s pension. The complaint sets forth two purported causes of action. The first cause of action alleges in substance that the defendant and his wife and their eight minor children have been for several years residents of Haakon County, S.D.; that on the 4th day of October, 1926, the defendant was sentenced to life imprisonment in the state penitentiary, and since that time he has been confined in that institution; that the wife and minor children of the defendant, since the time the defendant was confined in the penitentiary, have been without any means of support, and upon their application, it became necessary for the plaintiff county to furnish them with groceries, clothing, fuel, and other necessaries of life; that the defendant failed and refused to furnish his wife and children with articles necessary for their support. The reasonable value of the articles furnished is alleged, and judgment asked for that amount. The second cause of action is an attempt to recover money paid to the wife of the defendant “as a mother’s pension for the purchase of groceries, clothing, fuel, and other necessaries of life.” The defendant demurred to each cause of action upon the grounds that facts sufficient to constitute a cause of action were not stated. The separate demurrers were overruled, and defendant appeals.

The appellant contends: “That recovery is sought under the first cause of action; under section 191”; that by this section the duty to support is limited by the phrase “to the extent of their ability,” and because there is no allegation in the first cause of action that the defendant is able to support his family that the complaint is subject to demurrer. The respondent has filed no brief, but it is apparent to us that recovery here is not sought under the provisions of section 191, Rev. Code 1919. Under that section there is no duty imposed upon the husband to support his wife. The duty imposed under section 191 refers only to father, mother, and children.

Neither in our opinion does section 191 refer to the duty of the father to support his minor children. The duty of the husband and father to support his wife and minor children existed at common law. This state by statute has declared this common-law duty. Sections 169, 176, 183, and 192, Rev. Code 1919. By the common law, however, there was no duty upon the children to maintain their poor parents, nor upon the parents to maintain their poor adult children. We said in the case of McCook County v. Kammoss, 64 N.W. 1123, 31 LRA 461, 58 AmStRep 854, that section 191 “innovates the common law.” This section innovates the common law to the extent that thereunder it is the duty of the children to maintain their poor father and mother “to the extent of their ability,” and the duty of the father and mother to maintain their poor adult children “to the extent of their ability.” Since the sections of our Code above referred to, other than section 191, completely and adequately place upon the father and mother the common-law duty to support their minor children, and since section 191 has been declared to innovate the common law, we conclude that wherein that section places upon the father and mother the duty to maintain their poor children it refers only to their poor adult children. In the case of Sanborn County v. Lutter, this court indicated that section 191, wherein it placed upon the father and mother the duty to maintain their poor children referred to minor as well as adult children. But that case involved an adult child, and what was said with reference to minor children was dictum. Section 191 therefore is not a subject for our consideration in this case. As above pointed out, that section contains no reference to the duty of a husband to support his wife, nor to the duty of a father to support his minor children, and they are issues presented here.

The duty of the husband and father to support his wife and minor children is not limited by the provisions of our Code, as the duty imposed under section 191 is limited by the phrase “to the extent of their ability.” Whether it would be necessary to allege the ability to support or maintain in an action brought under the provisions of section 191, we are not called upon now to decide, but in this action,...