Opinion
9-21-1955
COUNTY OF SAN BERNARDINO, a body corporate and politic of the State of California, Plaintiff and Respondent. v. Ruth SIMMONS, Defendant and Appellant. Civ. 5051.
James E. Walker, Santa Ana, for appellant. Albert E. Weller, County Counsel of San Bernardino County, San Bernardino, and J. B. Lawrence, Deputy County Counsel, San Bernardino, for San Bernardino County.
COUNTY OF SAN BERNARDINO, a body corporate and politic of the State of California, Plaintiff and Respondent.
v.
Ruth SIMMONS, Defendant and Appellant.
Sept. 21, 1955.
Rehearing Denied Oct. 14, 1955.
Hearing Granted Nov. 16, 1955. *
James E. Walker, Santa Ana, for appellant.
Albert E. Weller, County Counsel of San Bernardino County, San Bernardino, and J. B. Lawrence, Deputy County Counsel, San Bernardino, for San Bernardino County.
MUSSELL, Justice.
Defendant appeals from a judgment against her in the sum of $140 and costs, for support and maintenance furnished her father under the provisions of the Old Age Security law, Welfare & Institutions Code, § 2000 et seq.
The amended complaint contains two causes of action, the first being presented upon Welfare and Institutions Code, § 2224, and the second on section 206 of the Civil Code. At the outset of the trial, evidence as to the first cause of action was excluded by the court and the trial was had on the issues stated in the second cause of action.
There is no dispute as to the following material facts found by the trial court. Plaintiff's board of supervisors duly and regularly approved the payment to defendant's father of monthly old age security benefits, and from July, 1952, until the filing of this action, plaintiff paid defendant's father for his maintenance a total sum of $1,025 as such benefits. Defendant is an adult and has been teaching school for several years. Her basic monthly income is approximately $440. She lives with her mother, with whom she shares expenses. Defendant's father, Henry Simmons, was 78 years of age at the time of the trial and testified that he last worked for a living in 1935 as a telegrapher; that he quit because he had 'telegrapher's paralysis'; that he had been in the hospital in 1951 and 1952 and that he was too old to obtain employment. From December 15, 1952, to the commencement of this action, defendant was possessed of money, property and earning ability sufficient to enable her to pay $20 per month for the support and maintenance of her father.
Section 206 of the Civil Code, which is the basis of this action, provides as follows: 'It is the duty of the father, the mother, and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding.'
This section of the code was enacted in 1872, and it is said in Woolams v. Woolams, 115 Cal.App.2d 1, 6, 251 P.2d 392, that its purpose is to protect the public from the burden of supporting a person who has a parent able to support her. Citing Duffy v. Yordi, 149 Cal. 140, 84 P. 838, 4 L.R.A.,N.S., 1159, 117 Am.St.Rep. 125, 9 Ann.Cas. 1017. Under the statute it is the duty of the adult child of any poor person who is unable to maintain himself by work, to maintain such person to the extent of her ability. The right of appellant's father to maintain a suit against her for his maintenance under the facts of this case cannot be questioned. However, the principal question here is whether the county, having furnished such aid and maintenance, can recover therefor without bringing an action under the provisions of section 2224 of the Welfare and Institutions Code.
The Old Age Security law, Welf. & Inst.Code, §§ 2000-2230, was enacted in 1937 and section 2004, under its general provisions, provides as follows: 'Nothing in this chapter shall be construed as repealing any act or part of an act providing for the support of the poor except in so far as inconsistent therewith, and the provisions of this chapter shall be construed as an additional method of supporting and providing for the aged poor.'
It is apparent therefrom that the legislature expressly declined to repeal section 206 of the Civil Code. Moreover, while the procedure for the recovery by the county of aid furnished is set forth in Welfare and Institutions Code section 2224, such procedure is not therein declared to be the exclusive procedure for recovery of aid furnished.
In Garcia v. Superior Court, 45 Cal.App.2d 31, 33, 34, 113 P.2d 470, 471, this court said: 'It seems rather clear that the obligation of support was placed on the children by the provisions of the Civil Code and the right of reimbursement, together with the procedure to be followed to enable a county to reimburse itself for aid given the parent, is established by the provisions of the Welfare and Institutions Code. That the latter code has nothing to do with creating the obligation of support of a parent by an adult child but is largely procedural seems clear from a study of the two codes though a contrary opinion has been expressed by way of dicta. County of Lake v. Forbes, 42 Cal.App.2d 744, 109 P.2d 972.'
In Kelley v. State Board of Social Welfare, 82 Cal.App.2d 627, 632, 186 P.2d 429, it is held that the basis for the Welfare and Institutions Code sections 2181 and 2224 is the obligation of support owed by spouses to each other, Civ.Code, Sec. 155, and owed by adult children to their indigent parents (Civ.Code, Sec. 206).
It is admitted in the pleadings herein, and found by the court, that the county furnished aid to appellant's father under the provisions of the Old Age Security law; that at the date of the commencement of the action defendant was possessed of money, property and earning ability sufficient to enable her to pay $20 per month for the support and maintenance of her father and that her father was a poor person, unable to maintain himself by work. These findings are supported by the record and unquestionably would support a judgment in favor of the recipient of such aid against the appellant. Paxton v. Paxton, 150 Cal. 667, 671, 89 P. 1083. Where, as here, the county was required to and did furnish the necessary aid, it was subrogated to the recipient's right of action. In Estate of Kemmerrer, 114 Cal.App.2d 810, 814, 251 P.2d 345, 347, 35 A.L.R.2d 1393, it is said that the doctrine of subrogation 'As now applied, it is broad enough to include every instance in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter.' And in Fireman's Fund Indemnity Co. v. State Comp. Etc. Fund, 93 Cal.App.2d 408, 412, 209 P.2d 55, 57, it is said: 'Subrogation is an arm of equity that may guide or even force one to pay a debt for which an obligation was incurred but which was in whole or in part paid by another.'
While our attention has not been directed to any decision of this state permitting recovery by the county for aid furnished under section 206 of the Civil Code, such recovery was permitted in McCook County v. Kammoss, 7 S.D. 558, 64 N.W. 1123, 31 L.R.A. 461 (where the statute was similar to Cal. C.C. § 206) and in Bismarck Hospital and Deaconesses Home v. Harris, 68 N.D. 374, 280 N.W. 423, 116 A.L.R. 1274, under a similar statute it was held that a third person furnishing relief directly to a poor person unable to maintain himself by work could maintain an action against the poor person's parents or children refusing to pay for value of the relief. In In re Stoner's Estate, 358 Pa. 252, 56 A.2d 250 the County Institution District and Commonwealth were held to be entitled to reimbursement for aid furnished an indigent. In Tryon v. Town of Moyer, 130 Minn. 198, 153 N.W. 370, L.R.A.1915E, 844, it was held that plaintiffs were entitled to recover for medical and hospital care from a relative whose duty was to support a dependent relative receiving such care.
In support of her argument that the Welfare and Institutions Code is the exclusive measure of the extent of the responsible relatives liability to the county and that the court erred in granting relief under Civil Code, § 206, appellant relies principally upon the case of County of Contra Costa v. Lasky, 43 Cal.2d 506, 275 P.2d 452, 454, where the court said: 'There is a conflict in the cases as to whether the basic liability of responsible relatives is section 206 of the Civil Code or the provisions of the Welfare & Institutions Code. It has been held that the latter code provisions are complete in themselves and the liability of responsible relatives to the county is thereby established. County of Lake v. Forbes, 42 Cal.App.2d 744, 109 P.2d 972; County of Los Angeles v. Lane, 113 Cal.App.2d 476, 248 P.2d 479; County of Los Angeles v. La Fuente, 20 Cal.2d 870, 129 P.2d 378. Seemingly to the contrary are Garcia v. Superior Court, 45 Cal.App.2d 31, 113 P.2d 470, and Kelley v. State Board of Social Welfare, 82 Cal.App.2d 627, 186 P.2d 429. Although it is not important in this case, we believe the matter is adequately covered by the Welfare & Institutions Code and it is the measure of the extent of the responsible relative's liability to the county. It is to it we must look to ascertain whether the relative is required, in a particular case, to reimburse the county.'
While the belief is expressed in the above quotation that the Welfare and Institutions Code is the measure of the extent of the responsible relatives' liability to the county, it is not stated therein that an exclusive remedy is provided by the Welfare and Institutions Code or that section 206 of the Civil Code has been repealed. As was stated, the belief there expressed was not important in that case or necessary to the decision. The action in that case was brought under the provisions of the Welfare and Institutions Code, and as is said in County of Los Angeles v. La Fuente, 20 Cal.2d 870, 878, 129 P.2d 378, 382: 'Section 2224 of the Welfare and Institutions Code is complete in itself, and gives a right of action to the county if the person receiving aid has within the state a spouse or adult child pecuniarily able to support him.'
We conclude that prior to the enactment of the Welfare and Institutions Code the county had a right of action under section 206 of the Civil Code for reimbursement of aid furnished a poor person whose responsible relative refused such aid and that the subsequent enactment of the Welfare and Institutions Code did not cut off such right.
The judgment is affirmed.
GRIFFIN, Acting P. J., and SHELL, J. pro tem., concur. --------------- * Opinion vacated 296 P.2d 329.