Town of Plymouth v. Town of Haverhill

• Decision Date: 29 July 1898
• Citation: 46 A. 460,69 N.H. 400
• Parties: TOWN OF PLYMOUTH v. TOWN OF HAVERHILL.
• Court: New Hampshire Supreme Court

46 A. 460

69 N.H. 400

TOWN OF PLYMOUTH

v. TOWN OF HAVERHILL.

Supreme Court of New Hampshire. Grafton.

July 29, 1898.

Case reserved from Grafton county. Action by the town of Plymouth against the town of Haverhill. Case discharged.

Assumpsit to recover for the support of one Harry Frizzell, alleged to be a pauper. The plaintiff expended $402.03 for the support of Frizzell between December 16, 1896, and February 15, 1897. The amounts so expended were reasonable and necessary. Forty dollars of this amount was incurred before December 22, 1896. The alleged pauper was a minor residing in Plymouth, was poor, and unable to support himself, and had a settlement in the town of Haverhill derived from his father, William Frizzell. At the time, the father declined to support his son on the ground that he was then unable to do so. The father was then unable from his income, which was the amount of his wages, to maintain himself and his wife, caring for her as her condition required, and support his son; and he had not then sufficient credit or property with which to do so without disposing of his homestead, or both his homestead and furniture. December 16, 1896, the overseer of the poor of the town of Plymouth took charge of Harry Frizzell, employed physicians and nurses to care for him, and became responsible for his support. December 21, 1896, the solicitor of Grafton county made complaint against him for an assault with intent to kill, and caused a warrant to issue and be placed in the hands of an officer. December 22, 1896, the officer went to the house where Frizzell was confined to his bed, and, by direction of the county solicitor, placed him under arrest. He did not remove him, because it was impossible to do so on account of his condition, but appointed his nurse a keeper over him to prevent his escape; and he remained under arrest in this way until February 22, 1897, when he was discharged from arrest under this warrant. Neither the solicitor nor the officer made any express contract on the part of the county to support him or pay any of his bills, or changed in any way the existing state of affairs, except as they were changed as a matter of law by his arrest and the appointment of a keeper, the overseer of the poor of the town of Plymouth all this time continuing to take charge of him and to be responsible for his support. At the request of the defendant, it is found that William Frizzell had sufficient property and credit to pay the expense incurred up to the time of the arrest of his son, but at that time it was apparent the expenses of his sickness would be quite large.

Burleigh & Adams, for plaintiff. Smith & Sloane, for defendant

PARSONS, J.The first ground urged against the liability of the defendant town, under the statute, for the sums paid by the plaintiff for the support of Harry Frizzell, is that he was not a pauper, because bis father was of sufficient ability to maintain him. Whether the father was or was not of sufficient ability is a question of fact Town of Poplin v. Town of Hawke, 8 N. H. 305; Moultonborough v. Tuftonborough, 43 N. H. 316; Litchfield v. Londonderry, 39 N. H. '247, 252. The finding of the court that at the time the support was furnished the father was unable, from his own income, to maintain himself and wife, caring for her as her condition required,' and support his son, and had not then sufficient credit or property with which he could pay for the support of his son, after maintaining himself and his wife, and caring for her as her condition required, without disposing of his homestead, or both his homestead and furniture, is, upon the authorities, a finding that, as matter of fact, he was not of the sufficient ability required by the statute to render him...