Mansfield v. Hyde

• Decision Date: 30 June 1952
• Citation: 112 Cal.App.2d 133,245 P.2d 577
• Court: California Court of Appeals Court of Appeals
• Parties: MANSFIELD v. HYDE et al. Civ. 18921.

Page 577

245 P.2d 577

112 Cal.App.2d 133

MANSFIELD v. HYDE et al.

Civ. 18921.

District Court of Appeal, Second District, Division 3, California.

June 30, 1952.

Hearing Denied Aug. 28, 1952.

Krag & Sweet, Alhambra, for appellant.

Barrick & Wright, Pasadena, for respondent Hazel Hyde.

No appearance for respondent First Trust & Savings Bank of Pasadena.

VALLEE, Justice.

Appeal by plaintiff and cross-defendant from a judgment for defendant and cross-complainant on her cross-complaint in an action for money. Since there is no appeal from an order denying a motion for a new trial, Code Civ.Proc., sec. 963, the appeal therefrom will be dismissed.

On May 3, 1949, plaintiff, the maternal grandmother, Betsy Mansfield Lovett, the mother, and Herman W. Lovett, the stepfather, of Jay Mansfield Lovett, a minor aged seven and one-half, entered into a written agreement with defendant whereby she was given the sole and exclusive care of the minor free from all interference by plaintiff, his mother, and stepfather. Defendant agreed to devote her best efforts to the training and education of the minor during the term of the agreement, which was for a period of not less than one year, beginning April 25, 1949. Defendant agreed to reside with the minor 'and assistant, or assistants, in her residence in Twenty-nine Palms, California, or other appropriate residence.' It was agreed that the grandmother, mother, and stepfather would abide by the decisions of defendant 'in matters of care, training and education.' Plaintiff agreed to deposit $1,000 each month in a bank to the credit of defendant, and defendant agreed to use it for the payment of all expenses incurred on behalf of the minor, other than doctor, druggist, and clothing bills, and to retain the balance in payment for her services. From April, 1949, until May, 1950, the minor resided continuously with defendant in her home at Twenty-nine Palms except for trips to the east which he took in company with defendant.

Defendant did not, at the time the contract was entered into, have a license or permit from the State Department of Social Welfare, or from an inspection service approved or accredited by the department, or from the State Department of Health, to do any of the things done by her; nor did she have such a license or permit during the life of the contract.

On June 19, 1950, plaintiff-grandmother brought the present action for money had and received, alleging that between April, 1949, and January, 1950, defendant had received $10,250 from plaintiff, to and for the use and benefit of plaintiff. Defendant filed an answer and cross-complaint, setting up the written contract of May 3, 1949, alleging full performance by her and default by plaintiff in payment of $1,700 on account of monthly payments falling due in February and March, 1950. Plaintiff's answer to the cross-complaint alleges as an affirmative defense that the written contract was illegal and void.

The issue presented to the trial court was whether the agreement was illegal and void by reason of defendant's failure to obtain a license or permit under the provisions of section 1620 et seq., of the Welfare and Institutions Code ¹ or section 1500 et seq. of the Health and Safety Code, ² as they read at the date of the contract.

The court found: the written agreement was valid and enforceable; defendant had fully performed all her duties and obligations in accordance with its terms; in performing, she did not violate the provisions of the Welfare and Institutions Code, sec. 1620 et seq., or the provisions of the Health and Safety Code, sec. 1500 et seq.; plaintiff was in default under the terms of the agreement in that she has refused to pay a balance of $1,700 due on account of monthly payments falling due on February 25, and March 25, 1950. The court concluded that plaintiff was not entitled to 'any' judgment on her complaint but made no adjudication thereon in the judgment. It adjudged that defendant on her cross-complaint recover from plaintiff $1,700 with interest.

Plaintiff argues that the judgment is contrary to law, the findings are not supported by the evidence, that defendant clearly comes within the provisions of section 1620 of the Welfare and Institutions Code, since the evidence conclusively established that defendant maintained and conducted a place for the reception or care of children under the age of sixteen years, also that she was engaged in the business of receiving or caring for children, and further that she received and cared for the child in the absence of its parents, without a license or permit contrary to the provisions of section 1620.

A license or permit is required if a person maintains or conducts any place for the reception or care of children under sixteen years of age, or engages in the business of receiving or caring for such children, or receives or cares for any such child in the absence of its parents or guardian, either with or without compensation. Section 1629 of the Welfare and Institutions Code makes it a misdemeanor to operate as provided in section 1620 without first having secured a license or permit.

At the time the parties entered into the contract, plaintiff's grandson was seven and one-half years of age. He suffered from an impairment of faculties which required, in addition to medical attention, the constant supervision of a person of skill and training in the educational treatment of such cases. During the life of the contract, he resided with, and was cared for by defendant in her home. When defendant first met plaintiff in March of 1949, she had in her charge, under a contract similar to that involved here, a 'little' girl from New York suffering from cerebral palsy. The 'little' girl resided with her in her home until the arrival of plaintiff's grandson. She lived with, and in the home of, defendant for two short periods while plaintiff's grandson was also living there; on the other occasions she lived in the home of one of defendant's assistants some little distance from defendant's home. Although she lived elsewhere the 'little' girl was brought to defendant's home 'for the things that I [defendant] was doing with her,' and defendant continued to receive compensation for her services to the 'little' girl three months after plaintiff's grandson was taken in charge by her. Besides herself and the children, defendant's household consisted of a maid and a housekeeper. Although defendant did not personally take care of the feeding, clothing, and similar needs of the children, but had others do so, and in the case of plaintiff's grandson, employed additional assistants to teach him formal school work, music, and physical education, defendant testified that 'Both he [plaintiff's grandson] and the people I engaged were under my direction. * * * I would say that my direct relationship with the child was that of teaching him decent habits of conduct.' She also testified that her work was 'conduct problems, cerebral palsy and polio.' The foregoing is all of the evidence bearing on the question for decision.

'Business' in its broad sense embraces everything about which one can be employed; the word is often synonymous with calling, occupation, or trade, engaged in for the purpose of obtaining a livelihood or profit or gain. Marin Municipal Water Dist. v. Chenu, 188 Cal. 734, 738, 207 P. 251. 'To 'engage in' is to be occupied in, to be employed in.' People v. Coppla, 100 Cal.App.2d 766, 768, 224 P.2d 828, 830.

'Care' is defined as charge, oversight, or management, implying responsibility for safety; also custody; temporary charge. (Webster's New Internat. Dict., 2d ed.) The care of children encompasses a variety of duties and services which may consist of something more than mere custodial care--i.e., housing, feeding, and attention to the usual needs of children. It may consist of additional duties and services, depending upon the particular training, qualification, special skill, and talent of those who hold themselves out as qualified to do certain things...