Rowell v. Town of Vershire
| Decision Date | 28 May 1890 |
| Citation | 19 A. 990,62 Vt. 405 |
| Parties | DARIUS H. ROWELL v. TOWN OF VERSHIRE |
| Court | Vermont Supreme Court |
MAY TERM, 1890
The judgment is reversed and cause remanded.
J K. Darling and John H. Watson, for the defendant.
This is an action of assumpsit in which the plaintiff seeks to recover for supporting his daughter Lomyra A., on an alleged contract with the overseer of the poor of the defendant. The daughter was 23 years old when the suit was brought, and presumably over 18 years old when the claimed contract was made. It is stated in the exceptions that it appeared that this daughter had from a child been of weak mind and incapable of exercising any choice or intention in regard to the place of her residence, had always lived with the plaintiff as a part of his family, and during all said time was suffering from such mental disability and infirmity as rendered it necessary that she should remain with and under the care, protection and control of her parents, and had never been emancipated. On this state of facts she was incapable of gaining any settlement in her own right. Ryegate v. Wardsboro, 30 Vt. 746. She would take the settlement of her father, though acquired after she reached the age of majority. Hardwick v Pawlet, 36 Vt. 320; Topsham v Chelsea, 60 Vt. 219, 13 A. 861. "Upon the ground of humanity," as said in the case first cited, she remained a part of the plaintiff's family after she reached the age of majority as much as she did before, and the same policy which prohibits the separation of the father from his unemancipated children for the purposes of support, prohibited the separation of this daughter from the plaintiff for such purpose. An order of removal upon the plaintiff, with his family and effects, would be operative to remove the daughter with him. Landgrove v. Plymouth, 52 Vt. 503. While, ex necessitate, she remained a member of the family of the plaintiff, he was bound, if of sufficient ability, to support her. When any member of the legally constituted family is in need of support, and the legal head of the family, on whom the duty to support the family legally rests, is unable pecuniarily to furnish it, the legal head of the family becomes a pauper and the family take their status from him, and the aid furnished to the needy member is legally furnished to him, because on him rests the legal duty of furnishing the support, not only of himself but of any member of the family. Newbury v. Brunswick, 2 Vt. 151; Gilmanton v. Sanbornton, 56 N.H. 336; Croydon v. Sullivan, 47 N.H. 179. In this last case may be found cited a large number of cases from other New England States, supporting this doctrine, and applying it to the case of support furnished to an unemancipated child who had passed the years of majority. Hence the charge of the court was correct when it instructed the jury that the aid furnished by the defendant for the support of this unfortunate daughter was furnished to the plaintiff, and that, in legal significance, the plaintiff was the pauper aided, because it was his duty, if of sufficient pecuniary ability, to support the daughter. The support of her, furnished by the town, was in relief of his legal duty and so in relief of him. Until the court thus charged, in substance, the case on both sides had been tried upon the question whether the overseer of the poor of the defendant had contracted with the plaintiff to pay him for supporting this daughter for more time than it had paid him. It had proceeded upon the basis that the plaintiff was under no legal duty, even if of sufficient ability, as between him and the town, to support the daughter, and that he in this respect stood related to the town like any other person under no legal duty to furnish the
support. As soon as the learned judge had closed his charge the counsel of the defendant requested the court to further charge the jury, in substance, that the plaintiff being the real pauper, although made so by the needs of this daughter, having furnished the support himself, could not recover of the poor of the defendant agreed that he would pay him for supporting the daughter. The court did not comply with this request and did not charge upon this subject
at all. To this neglect to charge the degendany excepted. The plaintiff contends that this request was out of season having been made at the close of the charge. If the request, as such, was out of time, it is well settled that, without request, the court is bound to charge upon every branch of the case. Hence, if this is an essenial part of the case, an exception to its failure to charge unrequested is well taken. But if the request were necessary, the court might well waive the rule requiring requests to be made earlier in the trial. It has done so, because it allows the exception...
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