Opinion
May 25, 1951. Rehearing Denied June 28, 1951.
Appeal from the Circuit Court for Duval County, Claude Ogilvie, J.
J.D. Hobbs, Jr., Forrest O. Hobbs and W. Frank Hobbs, all of Tampa, for appellants.
Mathews Mathews, John E. Mathews and John E. Mathews, Jr., all of Jacksonville, for appellee.
The Board of Commissioners of State Institutions sued Van H. Boney for the care and maintenance of his insane wife who was declared insane and committed to the Florida State Hospital.
Boney moved to dismiss on the ground that the obligation sought was not supported by statute or contract. The motion was granted and summary judgment entered, whereupon this appeal followed.
This is a case of first impression. A kindred one is Heidt v. Caldwell, Fla., 41 So.2d 303. It is not controlling here because there the suit was against the estate of the inmate.
Article XIII, Section 1, Const., F.S.A., provides: "Section 1. Institutions for the benefit of the insane, blind and deaf, and such other benevolent institutions as the public good may require, shall be fostered and supported by the State, subject to such regulations as may be prescribed by law."
This section is identical with Article X, Section 1, Florida Constitution of 1868. Under the latter and pursuant to same, Section 394.10, F.S.A., was first enacted into law and has continued in substance thereafter. The latter statutes makes provision for the institution to receive persons other than indigent. Section 394.11, F.S.A., provides for agreements relative to compensation; Section 394.12, F.S.A., provides for a performance bond.
It is readily apparent that before any legal obligation arises for an inmate's care the statute must be complied with.
The judgment is without error and is
Affirmed.
SEBRING, C.J., and TERRELL, HOBSON and ROBERTS, JJ., concur.
CHAPMAN, J., dissents with opinion.
THOMAS, J., not participating.
On May 30, 1933, Lena Boney, wife of Van H. Boney, was adjudged insane by the County Judge's Court of Duval County, Florida, and was committed to the Florida Hospital for the Insane, where she remained until December 31, 1933, when she was adjudged sane. On August 26, 1941, again she was adjudged insane and was again committed to Florida Hospital for the Insane. She was at the hospital, supra, because of her insanity, when this suit was instituted in March, 1950 where she was receiving food, board, lodging, hospitalization, medical care, medicine, nurse attention and other items usually supplied by a State Hospital for the Insane. The Hospital's statement for services rendered during 1933 amounted to $202.20, and costs from 1941 until this suit was filed amounted to $3,439.94, plus interest at the legal rate. It is admitted that Lena Boney was the wife of the defendant and that she received the several items enumerated at the Hospital.
The Board of Commissioners of State Institutions of Florida filed suit in the Circuit Court of Duval County, Florida, against Van H. Boney, the husband of the incompetent Lena Boney, for the purpose of recovering the sum of $3,642.14, with interest, due the Florida Hospital for the Insane for the supply of food, board, lodging, hospitalization, medicines, nurse attention and other items furnished Lena Boney when a patient in the aforesaid hospital. The husband defendant filed a motion to dismiss on grounds: (1) the complaint failed to state a cause of action; (2) no promise on the part of the defendant was shown or alleged; (3) no statutory duty on the part of the defendant was shown or alleged; and (4) the plaintiff failed to pursue the methods and remedies provided by statute and the Florida Constitution in order to impose liability. An order sustaining the motion to dismiss was entered and thereafter a summary judgment for the defendant below was entered and the State of Florida appealed.
It is admitted that the appellee's wife was hospitalized and treated at the Florida Hospital for the Insane for the year 1933; also after recommitment in 1941 and continuously since until this suit was filed in 1950. The reasonableness of the statement of costs of hospitalization in the sum of $3,642.14, with interest, is not challenged on this record. Counsel for appellee admits as true the aforesaid items but asserts that there is no statutory liability or law requiring a husband to pay hospitalization costs and treatment for his insane wife at the Florida Hospital for the Insane.
Insane persons have received special protective care from the government since an early date (see chapters 9 and 10, 17 Edward II, enacted about the year 1324) and as early as about 1744 (chapter 5, 17 George II) provision was made for the commitment and care of insane persons. Section 20 of said chapter 5, 17 George II, provided that where an insane person required commitment and "such person hath not an estate to pay and satisfy the same, over and above what shall be sufficient to maintain his or her family, then such charges shall be satisfied and paid by the parish, town or place where such person belongs." When Judge Leslie A. Thompson compiled the English statutes in force in this state, pursuant to an act of December 27, 1845, he appears to have considered the above mentioned statutes in force in this state under the act of November 6, 1829 (now section 2.01, Florida Statutes, F.S.A.). Beginning with chapter 792, Laws of Florida, Acts of 1856, the statutes of this state have required that where insane persons confined to the state hospital have a sufficient estate that the expenses of their keep in the hospital be paid from their estate, section 845, Revised Statutes 1892; section 5, chapter 4357, Laws of Florida, Acts of 1895; section 1204, General Statutes 1906; section 2312, Revised General Statutes 1920; section 4, chapter 19163, Laws of Florida, Acts of 1939; section 1, chapter 20504, Laws of Florida, Acts of 1941; and section 394.21, Florida Statutes, F.S.A. When the above statutes are read in connection with sections 394.09, 394.10, and 394.11, Florida Statutes, F.S.A., it clearly appears that the legislature never intended that all insane persons requiring confinement be supported at public expense; on the other hand it is evident that it was the intention of the legislature that only those having no means of their own for support be supported at public expense. The estate of an insane person was held liable for her care and support in the state hospital in the case of Heidt v. Caldwell, Fla., 41 So.2d 303.
When section 1, article XIII, of the state constitution, which provides that "Institutions for the benefit of the insane, blind and deaf, and such other benevolent institutions as the public good may require, shall be fostered and supported by the State, subject to such regulations as may be prescribed by law", was adopted, which provision is substantially the same as section 1, article X, contained in the constitution of 1868, statutes similar to the above had existed in this state for many years. By the great weight of authority statutes similar to the above have been upheld under similar constitutional provisions, see 28 Am.Jur. 684, section 44; 44 C.J.S., Insane Persons, § 75, p. 180. There is no reason to think that the adoption of section 1, article XIII, of the constitution, was intended to make the care of insane persons committed to the state hospital exclusively one of state expense.
There is no state statute expressly requiring that a husband support his wife while confined in the state hospital. This being true we must next examine the common law upon the question. Under the common law a husband is under a legal obligation to support and maintain his wife, 41 C.J.S., Husband and Wife, § 15, p. 404, and this rule is in force in this state, see sections 65.10 and 708.10, Florida Statutes, F.S.A.; Thompson v. Thompson, 86 Fla. 515, 98 So. 589; Coral Gables First Nat. Bank v. Colee, 155 Fla. 498, 20 So.2d 675; Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870, and the fact that the wife is insane does not absolve the husband from that obligation, 26 Am.Jur. 995, section 399; 44 C.J.S., Insane Persons, § 74, p. 176. Withholding support from a wife is a criminal offense in this state. Section 856.04, Florida Statutes, F.S.A.
There is a difference of opinion as to a husband's duty to support and care for his wife, and as to his liability for necessaries furnished her, when she is confined in a public institution because of insanity. 28 Am.Jur. 683, section 43; 44 C.J.S., Insane Persons, § 75, p. 178. It is stated in 44 C.J.S., Insane Persons, § 75, p. 178, that "Whether the husband of an insane woman is liable for her support at a public institution generally depends on whether he is or is not liable generally for her support at the public expense * * *. Hence in jurisdictions where the liability of a husband for the support of his wife who has become a public charge is recognized, a husband has been held liable for public support of his insane wife; but in jurisdictions where the liability of the husband for the support of his wife who has become a public charge, is denied, the husband has been held not liable for support of his insane wife in a public institution." (Emphasis supplied.) Where a husband neglects to support his wife, or turns her from his home, so that she becomes a public charge, it has been held in some jurisdictions that the necessaries furnished her as a pauper by the public may be recovered from the husband. 41 C.J.S., Husband and Wife, § 51, p. 515, citing Inhabitants of Vienna v. Weymouth, 132 Me. 302, 170 A. 499; Sturbridge v. Franklin, 160 Mass. 149, 35 N.E. 669; Brookfield v. Allen, 6 Allen, Mass., 585; Monson v. Williams, 6 Gray, Mass., 416; City of New Bedford v. Chace, 5 Gray, Mass., 28; Inhabitants of Hanover v. Turner, 14 Mass. 227, 7 Am.Dec. 203; County of Brown v. Siebert, 175 Minn. 39, 220 N.W. 156; Town of Rumney v. Keyes, 7 N.H. 571; Springfield Tp. v. Demott, 13 Ohio 104; Howard v. Whetstone Tp., 10 Ohio 365; Haakon County v. Staley, 60 S.D. 87, 243 N.W. 671, in other states, however, this doctrine has been denied, 41 C.J.S., Husband and Wife, § 51, p. 515, citing Noble County v. Schmoke, 51 Ind. 416; Switzland County v. Hildebrand, 1 Ind. 555; Norton v. Rhodes, 18 Barb., N.Y., 100. Further concerning this line of cases will appear in an annotation in 4 Ann.Cas. 788 et seq., hereinafter quoted from.
There are several cases holding that there is no common law liability on a husband to support his wife when she has been removed from his home by due process of law and confined in a public hospital. Richardson v. Stuesser, 125 Wis. 66, 103 N.W. 261, 69 L.R.A. 829, 4 Ann. Cas. 784; Delaware County v. McDonald, 46 Iowa 170; Baldwin v. Douglas County, 37 Neb. 283, 55 N.W. 875, 20 L.R.A. 850; Board of Commissioners of Marshall County v. Burkey, 1 Ind. App. 565; Noble County v. Schmoke, 51 Ind. 416. As to the Indiana cases reference is made to Aurora Casket Co. v. Ropers, 117 Ind. App. 684, 75 N.E.2d 680, text 682, hereinafter cited from; however, this rule does not seem to obtain in all jurisdictions.
The Appeals Court of Indiana, in the case of Aurora Casket Co. v. Ropers, 117 Ind. App. 684, 75 N.E.2d 680, text 682 and 683, considered the question of the duty of a husband to support his wife, when she was confined in the state hospital for the insane, and upon that question said:
"Neither by common law or by statute in this state is a husband relieved of his duty to support a wife who is absent from the home and confined in a state institution by reason of an unfortunate mental disease.
"We recognize that there is a minority rule in some jurisdictions that the husband is under no duty nor liability to support his wife while she is confined in a public institution for the insane. Richardson v. Stuesser, 1905, 125 Wis. 66, 103 N.W. 261, 69 L.R.A. 829, 4 Ann.Cas. 784; Roberts v. Whaley, 1916, 192 Mich. 133, 158 N.W. 209, L.R.A. 1918A, 189.
"But, we feel the better reasoned authorities are in accord with the general rule that a husband is as much under duty to support his wife when she is insane as when she is sane, and that there is a husband's duty to support his wife when she is confined in a public institution according to the husband's financial ability. McAnally v. Alabama Insane Hospital, 1895, 109 Ala. 109, 19 So. 492, 34 L.R.A. 223, 55 Am.St.Rep. 923; Central Kentucky Lunatic Asylum v. Craven, 1895, 98 Ky. 105, 32 S.W. 291, 56 Am.St.Rep. 323; Cunningham v. Reardon, 1868, 98 Mass. 538, 96 Am.Dec. 670; Carr v. Anderson, 1923, 154 Minn. 162, 191 N.W. 407, 26 A.L.R. 557; Ott v. Hentall, supra [ 70 N.H. 231, 47 A. 80, 51 L.R.A. 226]; Goodale v. Lawrence, 1882, 88 N.Y. 513, 42 Am.Rep. 259; American Jurisprudence, Vol. 26 § 399, p. 995."
The Supreme Court of Alabama, in McAnally v. Alabama Insane Hospital, 109 Ala. 109, 19 So. 492, text 493, although not directly involving the question, said: "* * * It has been held as the common-law doctrine, `that the husband must maintain the wife, whenever there is a separation without her fault. Insanity in either is not a fault; therefore whether he or she is insane, or though both are, he must still provide for her. If she is in the insane asylum, he must support her there. He may be sued for necessaries there supplied to her. Or, should he be the one in the asylum, the wife, though sane, may charge him with necessaries while he is there confined.' 1 Bish.Mar. Div. § 565." (Emphasis supplied.)
The above expression of the Alabama court seems to be in line with the earlier cases of Wray v. Cox, 24 Ala. 337, and Wray v. Wray, 33 Ala. 187.
The following several cases are considered in that certain annotation in 4 Ann. Cas. 788 as follows:
"* * * in Brookfield v. Allen, 6 Allen, Mass., 585, which was a suit on a contract to recover money paid by the inhabitants of the town of Brookfield for the support of the defendant's wife in the state lunatic hospital, it was held that the action was maintainable under the common law, though the defendant's wife had not left his house with his express or implied consent, or in consequence of any fault on his part. See to the same effect Charlestown v. Groveland, 15 Gray, Mass., 15. In Tennessee Insane Hospital v. McReynolds, 1 Tenn.Ch.App. 349, it was held that the expense of supporting and caring for a wife in a state hospital for the insane, a public charitable institution, must be met by the husband where he was able to support her. In Central Kentucky Lunatic Asylum v. Craven, 98 Ky. 105, 32 S.W. 291, it appeared that a wife was adjudged insane and confined in an insane asylum, and, on her husband's failure to pay her expenses at the asylum, an action was instituted to subject homestead property to the payment of the claim arising from the confinement of the wife in that institution. It was held that such property was not subject to the payment of the claim, but it did not appear that the claim was not considered a valid one. See also Wray v. Wray, 33 Ala. 187, wherein it was held that the failure of the husband to provide for his wife, while separated from him without fault on her part, and confined in a lunatic asylum, a sufficient maintenance and support, suitable to her condition and circumstances, entitled her to a decree for alimony. And see In re Meyer's Estate, Myr.Prob., Cal., 178, wherein it was held that a husband was not entitled to be reimbursed from his insane wife's trust estate the money he had paid for her maintenance in an insane asylum, though she was wealthy.
"In Matter of Renz, 79 Mich. 216, 44 N.W. 598, the expectant estate of an insane married woman was held liable for money advanced for her support in an insane asylum, inasmuch as it appeared that her husband was unable to provide for such support."
It is stated in 44 C.J.S., Insane Persons, § 75, p. 178, that the question of a husband's liability for necessaries furnished his wife while confined in a state hospital for the insane generally depends on whether he is or is not liable generally for her support at public expense. The following cases, upon the question of the liability of a husband for necessaries furnished his wife at public expense, appear from an annotation in 4 Ann.Cas. 788, to wit:
"It has been held in several jurisdictions that the husband is liable at common law for the support of his insane wife who has wandered from the matrimonial home or has been abandoned by the husband and has been cared for by the state, county, or a private person. Thus, in Davis v. St. Vincent's Insane Inst., 9 Cir., 61 F. 277, a case arising in Missouri and decided according to the law of that state, wherein it appeared that a husband abandoned his insane wife and she was supported and cared for by the St. Vincent's Institution for the Insane, a charitable organization, which brought suit against the husband for the value of the care and support furnished, it was held that the husband was liable. In Schelling v. Kankakee County, 96 Ill. App. 432, suit was brought by the county of Kankakee against one Schelling to recover compensation for the care and support of his insane wife at the county poor house. It appeared that Mrs. Schelling had been legally committed to the state hospital for the insane in 1881 on the order of the County Court of Kankakee County, and remained there till 1897. In that year, the officers of that institution caused her to be removed therefrom and placed in charge of the Kankakee county authorities, and notified the county clerk that this was done under the law of 1893, authorizing the removal of chronic cases from the state hospital in order that recent cases might be received. The county authorities received her and removed her to the county poor farm, where she was kept and cared for by the county continuously till the suit was begun in 1900, except that defendant paid for her clothing. The county furnished her board, medical attendance and nursing, and such physical control as an insane person required. It was held that the husband was liable. The court said: `The county authorities were required by the state authorities to receive the patient. The county authorities did receive her and have supported and cared for her. The county is not required by law to render that service gratuitously. Her husband was liable for her support while insane and cared for by the county. This rests on the general duty of the husband to supply his wife with necessaries.' In Alna v. Plummer, 4 Me. 258, it was held that a husband whose wife, being insane, had wandered from his home to an adjoining town and been relieved by the overseers of the poor of such town, was liable for the expense the overseers were put to. It appeared that the husband was well able to support her and knew her situation, she being but five miles from his house, but neglected to bring her home and to provide for her support. In Goodale v. Lawrence, 88 N.Y. 513, reversing 25 Hun, N.Y., 621, it was held that an insane wife whose husband had voluntarily permitted her to absent herself from his house was liable to the overseers of the poor for expenditures made by them for her support. Compare Board of Sup'rs of Monroe County v. Budlong, 51 Barb., N.Y., 493, which is in effect overruled in Goodale v. Lawrence, 88 N.Y. 513, the facts being similar. In Senft v. Carpenter, 18 R.I. 545, 28 A. 963, it appeared that the defendant's wife, who had been confined for several years in the Butler Hospital for the Insane, had escaped from that institution, and on the 16th day of January, 1891, was arrested and brought before the District Court in Providence, upon a complaint by her husband setting forth that she was insane and so furiously mad as to render it dangerous to the peace and safety of the people of the state for her to go at large, whereupon, upon giving satisfactory recognizance under the provisions of chapter 819, Pub. Laws R.I., she was released from arrest. She was thereupon taken by her sister, the plaintiff's wife, to the plaintiff's home, where for a period of seventeen weeks she was provided with board, lodging, nursing, and medical attendance, she being during all of that time an invalid and requiring much care and attention. The defendant objected to his wife's going to plaintiff's house, and notified him on said 16th day of January, at the District Court, that he would not pay his wife's board at the plaintiff's house, but would do so at said Butler Hospital for the Insane, but that outside of that institution he would pay nothing for her. It was held that the defendant was liable for his wife's support by the plaintiff, and that his liability was not affected by the fact that shortly after his wife went to the plaintiff's house to board he provided a suitable place outside of his own house for her to board and be taken care of, and communicated the fact to her bail."
Although under the rule in some jurisdictions the husband of an insane wife confined to a state institution is not liable for the support of his wife in such institution, it is felt that this is a minority rule, and that the rule in other jurisdictions, which hold that the husband is liable for the support of his wife under such circumstances, is the general and better reason rule and the one that should be followed in this state.
Another problem in this case appears to be whether or not an order of a county judge's court, adjudging a wife insane, finding that she is indigent and committing her to the state hospital at public expense is res judicata as to the husband so that an action by the state against the husband for necessaries furnished the wife by the state may not be maintained. In proceedings to determine sanity in this state the court is required to "ascertain, or direct the examining committee to ascertain, whether the person being examined is indigent or possesses sufficient available means for his support. This investigation may extend to the possibilities of acquiring property in the future." Section 394.21, Florida Statutes, F.S.A. This stat-statute, although it seems to contemplate an investigation as to the property of the person being examined, there is nothing therein indicating an examination as to the property of any other person. There is nothing apparent in the statutes indicating an intention on the part of the legislature to extend this investigation to the property of the husband or other relatives of the person being examined. A similar statute of Kansas appears to have been involved in the case of Kaiser v. State, 80 Kan. 364, 102 P. 454, 458, 24 L.R.A., N.S., 295, text 300, in which case the court said that "The record of the hearing which resulted in Freitag's being adjudged insane recites a finding by the probate court that he was without sufficient means for his support, and an order that his maintenance should be at the expense of the state * * *. The administrator contends that this shows an adjudication against the right of the state asserted in this proceeding. We think, however, that the purpose of the judicial inquiry into the financial condition of the insane person is rather to advise the public officers of his situation in that regard than to determine the right of the state to reimbursement for the expense incurred in his behalf." Furthermore, there was no attempt in the present case to determine the obligation of the appellee to support his insane wife while in a state institution, or his ability to do so. These questions do not appear from the record to have been adjudicated prior to this proceeding. The direction in the statutes to the county judge is to "ascertain, or direct the examining committee to ascertain, whether the person being examined is indigent or possesses sufficient available means for his support." Section 394.21, Florida Statutes, F.S.A., emphasis supplied. The direction is to ascertain whether the person being examined is indigent or possesses sufficient available means for his support, not whether the person being examined and his family, friends, etc., have available means from which he might be supported. The ability of a husband of a woman being examined to pay for her support in the state hospital is not directly involved; at the most it is only incidentally involved.
"The county judge's court is not a court of general jurisdiction in the course of the common law, and the rule of presumptions, as to jurisdiction not appearing of record, is not applicable to this court. Its jurisdiction should appear by its records, and when its records and proceedings do not disclose jurisdiction in a particular case, they may be attacked in any collateral proceeding by showing the absence of jurisdiction." State ex rel. Everette v. Petteway, 131 Fla. 516, 179 So. 666, text 671. Although it may be that a woman is not to be considered indigent when her husband has means for her support, see Ex parte Mays, Tex.Civ.App., 212 S.W.2d 164, where it was held that a husband was not indigent when the wife was possessed of means, it is evident that such question was not determined by the county judge in connection with the commitment, so as to bar a determination of the question of the obligation of the husband to support his wife in the state hospital. In this connection see also Krivitsky v. Nye, 155 Fla. 45, 19 So.2d 563; Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90; Pitts v. Pitts, 120 Fla. 363, 162 So. 708.
The jurisdiction of a County judge to issue commitments for insane persons to the Hospital for the Insane is therefore limited by statute to two classes of insane persons: first, those persons referred to in Section 394.09, F.S.A., as "destitute insane person" — such destitute insane persons may be hospitalized at public expense; and second, those "insane persons" referred to in Sections 394.10, 394.11 and 394.12, F.S.A., where the "friends, parents or guardians are able and willing to pay for the care, custody and maintenance of said insane person." Persons committed as destitute or indigents, contrary to statute, on mistaken questions of fact as to the financial ability to pay and obtain hospitalization at public expense, then the law implies a duty or obligation to pay for the benefits so received. This duty is binding on the insane person obtaining the benefits, or on her or his estate, and extends to and includes the husband, or his estate, or a wife so hospitalized.
I would reverse the judgment of the lower court.