Litchfield v. Londonderry , 39 N.H. 247 ( 1859 )

Fowler, J.

The plaintiffs brought their suit to recover of the defendants the expense of removing an alleged pauper to the Asylum for the Insane, and supporting him there during the period of his insanity. By the provisions of the statute, the selectmen of Litchfield were authorized to send any insane pauper supported by that town to the asylum, and thereupon the town might recover the expense of the support of such pauper, at the asylum, of the town chargeable with his suppQrt. Rev. Stat., ch.' 9, see. 13. Under the ruling of the court, of the correctness of which there may be some doubt, but which was at least sufficiently favorable to the plaintiffs, that the actual bond fide removal of the alleged pauper to the asylum, by the selectmen of Litchfield, under the circumstances of this case, was conclusive upon the question of the propriety of his removal, and consequently upon his insanity, the fact of his insanity was definitively settled in favor of the plaintiffs, and the amount to be recovered by them, if anything, fixed at the actual expense incurred by them in the removal and support of the alleged pauper at the asylum. Further evidence of the particular manifestations of the alleged pauper’s insanity was, therefore, wholly superfluous and immaterial. It could only be cumulative evidence to establish what, under the ruling of the court, had already been conclusively proved. Nor could it have had any legitimate bearing on the question of the father’s ability. That ability must necessarily have been equal to the requirements of the case, to the necessities of his son ; and these were, under the circumstances, the expenses of his removal to and support at the asylum for the time being. No multiplication of testimony could by possibility have increased the demand upon the father’s ability, for that was limited to defraying the expenses of the removal and providing for the support of his son at the asylum.

The additional evidence offered upon the trial, as to the alleged pauper’s insanity, was, therefore, properly excluded by the court.

Although it was decided, in Rumney v. Keyes, 7 N. H. 571, that a town in which a man resides may properly support his wife or minor children upon his credit, in the same manner that a trader might supply them with necessaries, and subsequently recover of him at common law compensation for the support thus furnished, it has never been seriously contended that one town could recover of another the expense of supporting a person alleged to have a settlement in the latter town, unless the person supported were, at the time of the support rendered, an actual pauper, within the meaning of the statute, upon which alone the liability of the latter town rests. In the present case, among other grounds of defence, the defendants resisted the plaintiffs’ claim, because, they said that although the alleged pauper was insane, and had been properly removed to the asylum and supported there, they were not liable for his support, since he was a minor, and his father had sufficient ability, and was bound to support him at common law.

The question of the father’s ability, thus raised, was properly submitted to the jury for determination, and we are unable to discover any valid objection to the instructions of the court in relation to it. They were rather too favorable to the plaintiffs, but yet in substantial accordance with repeated decisions of our highest judicial tribunal, in relation to the common law liability of a parent to support his minor children. Hillsborough v. Deering, 4 N. H. 86; Dover v. Murphy, 4 N. H. 161; Poplin v. Hawke, 8 N. H. 305. In Hillsborough v. Deering it was laid down that a parent was bound at- common law to support his unemancipated children as long as he had any means whatever to do it. The same doctrine is reaffirmed in Dover v. Murphy, This rule was, however, somewhat modified in Poplin v. Hawke, where it was announced that he is to be deemed a pauper who cannot relieve his immediate wants without disposing of property which is essential, and which, if parted with, must be immediately replaced to enable him to live. “No man,” says Richardson, C. J., “ is to be considered as a pauper who has credit or property with which he can, under the circumstances in which he is placed, immediately relieve his wants if he will.” And again: “The question in this case was, then, had Thorn credit or property with which he might have relieved himself and family, without disposing of what must have been immediately replaced in order to enable him to live ? If he had, he was not to be considered a pauper. If he had not, then he was to be considered as a person entitled to relief under the statute. And the question should have been submitted to the jury with directions to that effect.” In the case at bar, the precise question involved in Poplin v. Hawke was raised and submitted to the jury, with instructions even more favorable to the plaintiffs than those prescribed by Chief Justice Richardson, and it seems to us the plaintiffs have no just cause of complaint on this account.

Nor would there seem to be any reasonable probability that the jury could have misunderstood either the language or the spirit of the instructions given them. The court had ruled in their presence, that the removal of the alleged pauper to the asylum, by the selectmen of Litchfield, was conclusive both upon the fact of his insanity and the propriety of his removal; and they must, therefore, have clearly understood that the ability of the father to relieve the necessities of his minor son for the time being, must, at least, have been such as to enable him to defray the expense of his removal to the asylum, and provide for his support there. "With instructions, which could hardly have been misunderstood, to find whether the father had credit or property with which he might have relieved the necessities of his minor son for the time being, the jury found that the father was able to furnish immediate relief, which, under the circumstances of the case, can only be regarded as equivalent to finding that the father was able to defray the expenses of his minor son’s removal to the asylum, and provide for his support there. And it has not been suggested that this finding was not fully authorized by the evidence. Indeed, the case shows that the father had some two hundred and fifty dollars’ worth of real estate, besides stock, furniture, crops, &c., and it is quite apparent, therefore, that the jury might well have found that he had credit or property to enable him to provide for the necessities of his son, the whole amount of which, as claimed by the plaintiffs, had been only $109.

Upon the verdict thus rendered a general verdict for the defendants was rightly directed; for it was itself equivalent to such a verdict. Although informal, and not finding in terms the issue submitted to them, yet the verdict of the jury was a finding of the very matter upon which that issue depended. From it the issue was necessarily concluded; for if the father had, as the jury found he did have, sufficient ability to provide for the necessities of his minor son, at the time the plaintiffs furnished that son with the support for which they claimed to recover, the defendants could never have promised, under the provisions of the statute, to pay the plaintiffs therefor, because they could never have been liable thus to pay them. The fact found by the verdict being established, a general verdict for the defendants was a matter of law and of course, under the order or direction of the court. Com. Dig.,Pl., S., 26, et seq.; Coke Litt. 217, a; Holman v. Kingsbury, 4 N. H. 104; Pettes v. Bingham, 10 N. H. 514; Allen v. Aldrich, 29 N. H. 63, and authorities; Foster v. Jackson, Hobart 54, a; Hawks v. Crofton, 2 Burr. 698; Porter v. Rummery, 10 Mass. 64; Thompson v. Button, 14 Johns. 84; 9 Mass. 316; 2 Johns. 210; 4 Johns. 213.

"With these views of the rulings and instructions of the court, and of the effect of the finding of the jury, there must be

Judgment upon the verdict.