Treasurer and Receiver General v. Sermini

• Decision Date: 11 January 1918
• Citation: 229 Mass. 248
• Parties: TREASURER AND RECEIVER GENERAL v. CHARLES SERMINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 248

TREASURER AND RECEIVER GENERAL v. CHARLES SERMINI.

Supreme Judicial Court of Massachusetts, Suffolk.

January 11, 1918

November 12, 1917.

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ.

Pauper. Parent and Child.

Husband and Wife. Insane Person. Commonwealth. Venue. Under R.

L.c. 81, Section 10, and St. 1909, c. 504, Section 82, the

Treasurer and Receiver General may recover in an action against a father living in this Commonwealth and of sufficient ability, for the support in a State hospital for the insane of his daughter, who at the time of her committal was more than twenty-one years of age and was married to a man then living in this Commonwealth and continuing to reside here.

In such an action the erroneous admission, subject to the defendant's exception, of evidence, offered and introduced by the plaintiff, that the husband of the insane person was not of sufficient ability to pay for her support, does not harm the defendant, as he would have been none the less liable if it had appeared that the husband of his daughter was of sufficient ability to support her.

It also was said that, although the Treasurer and Receiver General was not bound to resort to his remedy against the husband if of sufficient ability to support his wife, he was at liberty to do so.

In the case above described, where the action, being a civil action in which money due to the Commonwealth was sought to be recovered properly was brought under R.L.c. 167, Section 4, in the county of Suffolk, although the defendant neither lived nor had his usual place of business in that county, it was said that, if there had been an error in the venue, the defendant could not have taken advantage of it, because he did not raise the objection either by a plea or answer in abatement or by a motion to dismiss.

CONTRACT under St. 1909, c. 504, Section 82, by the Treasurer and Receiver General, at the request of the State board of insanity, to recover for the support of the defendant's daughter Lena Morin at the price of $2.50 a week at the Northampton State Hospital for the insane. Writ dated March 31, 1915.

In the Superior Court the case was heard by O'Connell, J., without a jury. The essential facts found by him are stated in the opinion.

The plaintiff offered evidence to prove that Eugene W. Morin, the husband of Lena Morin, had no property at the date of the writ or at the time of the trial and was not then of sufficient ability to pay for the support of his wife and that there was no reasonable prospect of Morin accumulating property which could be levied upon to satisfy any judgment which might be obtained against him for such support. The defendant objected to the admission of this evidence. The judge stated that he would admit the evidence de bene, and, if be finally decided that the evidence was competent, its admission should be subject to the defendant's exception. The evidence was admitted and the judge made findings based on it, including findings that Eugene W. Morin had no property and that there was no reasonable prospect of his accumulating property which could be levied upon to satisfy any judgment that might be obtained against him for the support of his wife in the hospital.

At the close of the evidence the defendant asked the judge to make the following rulings:

"1. Upon all the facts and the law, the plaintiff is not entitled to recover and the verdict must be for the defendant.

"2. Under St. 1909, c. 504, Section 82, the Treasurer and Receiver General cannot recover for the support of an insane person who is an adult married woman from any of the kindred of such person while her husband is living in the Commonwealth.

"3. A father is not `bound by law' to support his adult daughter except she be a pauper and then only under the provisions of the statutes in such case provided."

The judge refused to make either of these rulings and ruled that the defendant was liable. He found for the plaintiff in the sum of $404.23; and the defendant alleged exceptions.

R.L.c. 81, Sections 9, 10, are as follows: "Section 9. A pauper, his executor or administrator shall be liable in an action of contract to a city or town in which he has a settlement for expenses incurred by it for his support.

"Section 10. The kindred of such poor persons, in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, living in this Commonwealth, and of sufficient ability, shall be bound to support such poor persons in proportion to their respective ability. The mother shall be under the same legal obligation to support her pauper children as the father but she shall not be liable to criminal prosecution for the enforcement of such obligation."

St. 1909, c.

504, Section 82, is as follows: "The price for the support of inmates, other than State charges, of the institutions mentioned in section fourteen, and of the Massachusetts School for the Feeble-Minded, shall be determined by the trustees of the respective institutions. The price for the support of State charges shall be determined by the State board of insanity at a sum not exceeding five dollars per week for each person, and may be recovered by the Treasurer and Receiver General from such persons if of sufficient ability, or from any person or kindred bound by law to maintain them. The Attorney General shall upon request of the said board bring action therefor in the name of the Treasurer and Receiver General."

H. C. Joyner, for the defendant.

H. C. Attwill, Attorney General, & H.

W. Barnum, Assistant Attorney General, for the plaintiff, submitted a brief.

CROSBY, J. This is an action at law brought by the plaintiff in his official capacity under St. 1909, c. 504, Section 82, to recover for the Commonwealth certain charges for the support of one Lena Morin, while she was an inmate of one of the State hospitals for the insane. A judge of the Superior Court has found certain facts, admitted by both parties at the trial, which are sufficient to establish liability, if, as matter of law the defendant can be charged for the support so furnished.

The inmate died in the hospital on December 24, 1914. She was a daughter of the defendant, and on the date of her committal was more than twenty-one years old and was legally married to one Eugene W. Morin, who was living in this Commonwealth at the time of her committal and has ever since resided here. It is agreed that the defendant is of sufficient ability to pay for the support furnished at the rate charged, and that due demand was made upon him therefor before the bringing of this action. It is his contention that he is not liable for the support of his adult married daughter either at common law or by virtue of any statute.

Whatever the rule of the common law in England may be, it is settled in this Commonwealth that, in the absence of any statute, a father if of sufficient ability is bound to support his minor children. Dennis v. Clark, 2 Cush. 347, 352. Gleason v Boston, 144 Mass. 25 , 26. It is also true that at common law no obligation rested upon a father to support his adult married daughter or adult son; but nearly a century and a quarter ago a statute was enacted in this Commonwealth which greatly enlarged and extended the common law liability for the support of poor and indigent persons. This statute, enacted in 1793, by c. 59, Section 3, provided, in part, that the kindred of any poor person "in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, living within this Commonwealth, of sufficient...