Howlett v. State Social Security Com'n

• Decision Date: 14 December 1940
• Citation: 146 S.W.2d 94,236 Mo.App. 231
• Parties: BEN F. HOWLETT, RESPONDENT, v. STATE SOCIAL SECURITY COMMISSION, APPELLANT
• Court: Missouri Court of Appeals

146 S.W.2d 94

236 Mo.App. 231

BEN F. HOWLETT, RESPONDENT, v. STATE SOCIAL SECURITY COMMISSION, APPELLANT

Court of Appeals of Missouri, Springfield

December 14, 1940

Reversed 149 S.W.2d 806 (Mo. Sup.).

Appeal from the Circuit Court of Butler County.--Hon. Robert I Cope, Judge.

JUDGMENT OF THE CIRCUIT COURT AFFIRMED AND CASE TRANSFERRED TO THE SUPREME COURT.

Judgment affirmed and record certified to Supreme Court.

Roy McKittrick, Attorney-General and Aubrey R. Hammett, Jr. Assistant Attorney-General for appellant.

(1) The court has jurisdiction of appeals under the State Social Security Act. White v. State Social Security Commission of Missouri, 137 S.W.2d 569. (2) There is substantial evidence to support the award or decision of the State Social Security Commission. Therefore, this court should affirm that award or decision. State v. Gregory, 96 S.W.2d 47, l. c. 51, 52; Mississippi Valley Trust Co. v. Begley, 275 S.W. 540, l. c. 544; Redmon v. State Social Security Commission of Mo., 143 S.W.2d 168; Henry A. Clay v. State Social Security Commission of Mo., 143 S.W.2d 165. (3) The court erred in remanding this cause to the State Social Security Commission for a redetermination of the issues in conformity with this decision. Section 16, page 736, Laws of 1939; Keller v. State Social Security Commission, 137 S.W.2d 989, l. c. 990-991. (4) The court erred in finding for this claimant for the reason there is not evidence that he is in need. Johns v. State Social Security Commission of Mo., 143 S.W.2d 161. (4) The court erred in refusing defendant's declaration of law. Price v. State Social Security Commission, 121 S.W.2d 298; Hughes v. State Social Security Commission, 128 S.W.2d 671.

David W. Hill for respondent.

TATLOW, P. J. Smith and Fulbright, JJ., concur.

OPINION

TATLOW, P. J.

--The hearing before the Commission was on November 8, 1939. The finding of the Commission is in the stereotyped form, as follows:

"That the claimant has income, resources, support and maintenance to provide a reasonable subsistence compatible with decency and health and is not found to be in need. Therefore, claimant does not come within the purview of the statute and application for old age assistance is denied."

The Commission appealed the case to the Circuit Court, and the Circuit Court rendered a judgment on January 19, 1940, which contains the following finding:

"Finds that the plaintiff, Ben F. Howlett, is now and was, at the time he filed his application for old age assistance, eligible under the laws of this state for old age assistance, and that the decision of the State Social Security Commission, on his appeal from the decision of the County Commission, in denying to him any such aid, is unfair, arbitrary and unreasonable and that the said decision of the State Social Security Commission should be reversed and set aside and that this cause should be remanded to the State Social Security Commission for redetermination according to the decision of this court (see Branson v. State Social Security Commission, 139 S.W.2d 551)."

The judgment of the court is in accordance with the above finding.

Respondent has not filed a brief, but argued the case orally.

The undisputed facts are that this plaintiff has, since November, 1935, been entirely supported by his son and has received the necessities of life, sufficient, at least, to keep him out of the poorhouse. The respondent was born on May 1, 1860, and has had no property of any kind for twelve years. His son has been his sole source of support. The respondent and his son both live at the Gibbons Hotel, Poplar Bluff, Missouri. They occupy separate rooms, for which the son pays $ 30.00 per month--that is, $ 15.00 a month for each room. The son also pays for all of respondent's meals. Most of the time respondent eats at the restaurant in the Dunn Hotel in Poplar Bluff, Missouri. His meals amount to approximately $ 20.00 per month and are paid for as they are consumed. He sends his laundry each week to the Metropolitan Laundry; the expense therefor averages $ 1.00 per week, for which the son pays. The son also purchases for the respondent his clothing; the expenditures therefor amount to approximately $ 5.00 per month. The rooms are comfortable. The respondent owes no one except for an operation which was performed. He had a place cut out of his neck, which he was not able to pay for. The doctor said it was a cancer. He did not ask the doctor what his bill was as he did not have the money to pay for it and his doctor had not yet sent him a bill. Respondent is now a widower, his wife having passed away two years ago. His son was fifty-one years old on December 3, 1939. His son has varicose veins and is liable to break down at any time. His son has a daughter either twenty-four or twenty-five years of age. She is working in Detroit, Michigan. She is practically self-supporting with what help her father is able to give her. The respondent testified that he did not think that his son was really financially able to support him. His son testified, concerning his financial ability, as follows:

"Q. Your father figures here for decent living $ 44.50 a month. Are you really able under your circumstances to furnish that, or does he skimp himself and come below that in his eating? A. He won't eat right. He is afraid to eat. He is afraid he is taking too much out of my salary.

"Q. Are you able to pay $ 44.00 a month? A. Well, no, and keep myself going like I should."

He was barely able to meet these obligations out of the $ 80.00 a month that he had been receiving as day clerk in the Dunn Hotel, where he was employed from month to month. His salary was raised to $ 100.00 in October of 1939. The son testified that his health was all right with the exception of varicose veins, which interfered with his work as he was required to be on his feet for twelve hours each day. He weighed 200 pounds and was only five feet four inches in height. He had been over-weight since he was fourteen years old. There is no evidence that he has any property of any kind, or has been able to save anything.

This is all of the evidence that we can find in the record to support the finding of the Commission.

Under the cases of Price v. State Social Security Commission, 121 S.W.2d 298 (this court); Moore v. Social Security Commission, 122 S.W.2d 391, l. c. 394 (K. C. App.); Branson v. Social Security Commission, 139 S.W.2d 551, this case should be affirmed. These cases were under the 1937 law. The instant case is under the 1939 law.

Section 11 of the 1937 Act (Laws of 1937, p. 473) has been amended by adding thereto paragraph (6), further prohibiting the payment of benefits to persons coming within the paragraph. It now reads:

". . . Benefits shall not be payable to any person who:

. . . .

"(5) is an inmate of any public institution at the time of receiving benefits. An inmate of such an institution may, however, make application for such benefits, which if granted, shall not begin until after he or she ceases to be an inmate.

"(6) has earning capacity, income, or resources, whether such income or resources is received from some other person or persons, gifts or otherwise, sufficient to meet his needs for a reasonable subsistence compatible with decency and health."

As we see it, the question presented in the instant case is whether paragraph (6) places upon the son in the instant case the absolute and unqualified legal duty to support his dependent father out of his meager earnings. We do not think it does.

"At common law a child is not bound to support its parents or grandparents." [46 C. J., Parent and Child, Section 73, p. 1279.] This is also the Missouri rule, McCullough v. Powell Lbr. Co., 205 Mo.App. 15, l. c. 27, 216 S.W. 803, where it is said: ". . . The deceased was under no legal obligation to support his father and mother, brothers and sisters, and therefore neither of them had any legal claim upon him for support, and his contribution to their support and maintenance was at the time of his death wholly voluntary."

Corpus Juris further says: "It is generally held to be the common-law duty of a parent to support his minor children, and of a husband to support his wife; but beyond this a person is under no legal obligation, in the absence of statute, to support his poor relations. However, for the purpose of indemnity to the public against the maintenance of paupers, statutes have been passed imposing upon kindred, in certain degrees, liability for the support of their indigent or pauper relatives, and such statutes have been held constitutional. A statute of this kind is remedial and, like other remedial statutes, is to be liberally construed. . . ." [48 C. J., Paupers, Section 147, p. 508.]

Giving to Section (6) a liberal construction, it clearly does not purport to place upon the son the absolute and unqualified duty to support his indigent father. It only does so in a vary indirect way--that is, by denying the parent assistance if the son, although able to support his father, refuses to do so. It places upon the son no enforceable legal obligation. It relies upon public opinion to coerce him to do so. If he is thick-skinned enough to disregard public opinion, the only way that an indigent father (such as the one in this case) can get assistance under the statute, is to go to the poorhouse and then make application under paragraph (5) of the Act so as to enable him to get out of the poorhouse. This is a very drastic remedy so far as the dependent father is concerned. It visits upon the parent the omission of the son, but leaves the son's pocketbook entirely unaffected. Ordinarily no coercion is required to compel a child who is able to do so to support an indigent...