171 Ky. 616 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
The action, in which the judgment appealed from was rendered, was brought by the appellant, the Central State Hospital, by the State Board of Control of Charitable Institutions, against the appellee, D. 0. Foley, to recover from him the sum of $150.00 per year for the board and maintenance of Mary E. Foley, a pauper lunatic, from the 6th day of August, 1902, until her death, on the. 15th day of March, 1912, amounting as alleged to the total sum of $1,445.50. It was substantially alleged in the petition that Mary E. Foley was the wife of appellee, and that on or about the 6th day of August, 1902, she was adjudged to be a dangerous pauper lunatic by a judgment of the Jefferson circuit court and ordered to be committed to and cared for in the Central Kentucky Asylum for the Insane, now the Central State Hospital, and that pursuant to the judgment and order she was committed to the asylum for the insane and there remained, until the date of her death; that she was at all times a lunatic and incapable of contracting or caring for helself, and was furnished with board, lodging and the other neces
The appellee, by answer, denied in general terms that he was indebted to appellant in any sum for the board of his wife; and alleged that previous to May 6, 1902, he was a citizen of and resided in the state of Tennessee; that he had caused his wife to be committed to an asylum for the insane in that state, and thereafter, without his consent, the father of his wife procured her release, from that asylum and brought her to tire state of Kentucky; that thereafter, the authorities of the state of Kentucky, without his knowledge or consent, committed her to the Central State Hospital; that the board, lodging and care furnished her by the appellant was voluntary and against his will, and without excuse, therefor, and unnecessary. By another paragraph, the appellee invoked the statute of limitations, as provided for such states of case, as a bar, to the recovery sought, of all the sum sued for, which had been expended for his wife previous to the 12th day of February, 1910; that he has at all times, from the time of his wife’s commitment until her death, been the owner of real and personal property in the states of Kentucky, and Tennessee, which was subject to execution for debt and out of which appellant’s demand could have been satisfied. The affirmative averments of the answer were denied by a reply.
Evidence was heard, which proved that Mary E. Foley was confined in an asylum for the insane in Tennessee; that her father and appellee went together to the- asylum and secured her release and brought her to the home of her father in Whitley county, Kentucky, where she remained for about two years; that appellee resided about one and a half miles from the home of his wife’s father but in the state of Tennessee; that during the two years that she was at her father’s home, the appellee visited her four or five times. It does not appear whether he did or provided anything for her maintenance during this
After the conclusion of the testimony, the appellant offered and moved the court to give three instructions. By the first the jury was instructed to find for appellant, at the rate of $150.00 per year, for the board of Mary E. Foley, from February 12, 1910, until her death. By the second instruction offered, the jury was directed to find for appellant, at the rate of $150.00 per year, for the time it boarded and cared for Mary E. Foley, prior to February 12, 1910, if the jury believed from the evidence that the appellee did not have in this state sufficient property or money out of which the appellant, by the exercise of ordinary diligence, could have collected from appellee the value of the board of his wife, at the rate of $150.00 per year, prior to the date mentioned. The third instruct tion offered was the converse of the second offered. These instructions were refused, to which appellant excepted.
The appellee moved the court to peremptorily instruct the jury to find a verdict for him. This motion was sustained and the jury instructed to return a verdict for appellee, which it did. To the giving of the instruction to find for appellee, the appellant excepted. A judgment was rendered dismissing the petition. The appellant’s motion for a new trial being overruled, it has appealed.
“Where patients, who have been or may be supported in either of said asylums, have or shall acquire estate-, which can be subjected to debt, the Auditor of Public Accounts is authorized and directed in every such case to sue for in the name of the asylum and recover the amount of such patient’s board, at the rate of two hundred dollars per year, or so much thereof as such estate will suffice to pay, for the time they shall have been respectively kept and maintained therein, and not otherwise paid for, and by px-oper proceedings subject their estates, respectively, for the payment thereof; and when the husband, wife or parent of any such patient, who has been or may be supported in -either asylum, shall, have -estate sufficient for the support of such patient, in addition, to the support of any others who may be dependent on such husband or parent, in like manner to sue- and recover from such husband the- amount of his wife’s board, and from such parent the amount of Ms or her child’s board at the rate aforesaid for the timo they shall have- been respectively supported by such asylum, and the statute-of limitations providing the time in which such actions for such recovery may be instituted shall not rxm against recovery herein provided for until from and after the time at which said estate is acquired1.
“Such suit shall create a lis p&udews lien, and if judgment is obtained, such judgment shall constitute a lien npon so much of the patient’s estate as is -desoribéd in the petition.” * * ®
Section 2515, Kentucky Statutes, provides that the enforcement of a liability created by statute shall be barred after five years from the time the cause of action accrued. This court, in Schroer v. Central Asylum, 113 Ky. 288, supra, held that a demand provided for in Section 257, supra, was a liability created by statute, and that the five year statute of limitations, as provided for in Section 2515, supra, applied to it. In Section 257, supra, it is enacted, that the causes of action provided for in that section shall arise when estate is acquired, which may be subjected to the demands. Hence, a husband, under the provisions of that statute, becomes liable for the board of his insane wife at one of the hospitals provided by the state for the insane, when he has acquired a sufficiency of estate to pay the board of his wife, in addition to the support of others, which may be dependent upon Mm. An action to recover it must be instituted within five years after such estate is acquired. The uncontradicted evidence, .in the instant case, proves that the appellee had a sufficiency of property to pay the board of Ms wife, in addition to any dependent upon him, from the time of the commitment of his wife to the asylum and all the time, wMle she was maintained there, and that the evidence of a sufficiency of Ms property to malee him liable for the board was of record. Hence, all the .demand sued for, which was created more than five years
The appellee, however, insists that the record of the conviction of Mary E. Foley and the order for her commitment to the Central Asylum for the Insane is only an unsigned judgment upon the records of the Whitley county court. Such a record is not a judgment at all, and conferred no authority upon the asylum to receive or hold the patient. Raymon v. Smith, 1 Met. 65; Com. v. Chambers, 1 J. J. M. 108; Johnson v. Com., 80 Ky. 377; Ewell v. Jackson, 129 Ky. 214; Farris v. Matthews, 149 Ky. 455. The appellee, however, by his answer admitted the validity of the judgment. The county judge now in office may yet, however, sign the judgment and make it valid, 1060 Kentucky Statutes; May v. Duncan, 157 Ky. 586; Anderson’s Com. v. Anderson’s Admr., 161 Ky. 18; L. R. A. 1915, C. 581.
Without a valid judgment adjudging' Mary E. Foley to be a pauper lunatic and ordering her to be committed to the asylum, the appellant can only rely for recovery for her board against appellee as for necessaries furnished to her upon a qucmtumi meruit, and in such state of case the appellee could rely for a defense to the action upon such as he would have by the common law. Michaels v. Asylum, etc., 118 Ky. 448; Porter, etc. v. Aysler, etc., 28 R. 796.
The parties should be permitted, if they desire, to amend their pleadings.
For the reasons stated the judgment is reversed and cause remanded for proceeding's consistent with this opinion.