237 Mass. 354 | Mass. | 1921
The judge was warranted in finding on the agreed facts, that Hinds and his family had a legal settlement in the defendant city on and prior to July 13, 1911, but that thereafter he never lived, nor was he in Fitchburg except for three months and twenty days, when, suffering from tuberculosis, he became an inmate of a public hospital in the city, to which he had been sent by the overseers of the poor of the plaintiff acting under the direction of the defendant’s board of health. It is not contended that relief was not furnished and due notice given by the plaintiff; nor is the amount claimed in dispute. R. L. c. 81. The defence is, that under St. 1911, c. 669, Hinds lost his settlement in Fitchburg because of absence therefrom for five consecutive' years elapsing after July 13, 1911, the date of the enactment of that statute.
By § 1, cl. 1, “Any man or woman ... of the age of twenty-one years, who hereafter resides in any city or town within this Commonwealth for five consecutive years, shall thereby acquire a settlement in such place,” and by § 4, “A person who, after the passage of this act, is absent for five consecutive years from the city or town in which he had a settlement shall thereby lose his settlement. But the time during which a person shall have
It is true as the plaintiff’s counsel points out, that under R. L. c. 80, which is expressly repealed by St. 1911, c. 669, § 7, a settlement once acquired continues until it is defeated or lost by the acquisition of a new one within this Commonwealth, and that, “No person shall acquire a settlement, or be in process of acquiring a settlement, while receiving relief as a pauper,” unless within a time stated he reimburses the cost thereof to the city or town furnishing the same. The last provision is re-enacted in St. 1911, c. 669, § 2. It is unnecessary however to decide, as the plaintiff further contends, whether a person may lose his settlement because physically absent for five consecutive years, and yet be unable to gain contemporaneously a new settlement, because if furnished relief by the city or town where- he falls into distress he can acquire no rights therein while such aid continues, or whether under such conditions his support necessarily becomes a charge upon the Commonwealth. See R. L. c. 81, § 21, as amended by St. 1903 c. 355, and St. 1912 c. 331. Scott v. Clayton, 51 Wis. 185.
If it be assumed under the law relating to paupers that domicil ■and residence are identical, it is clear on the record, that Hinds should be regarded as having a home wherever he might find work, and that when admitted to the hospital he had not been absent from Fitchburg a sufficient time to lose his settlement. Wilbraham v. Ludlow 99 Mass. 587. Palmer v. Hampden, 182 Mass. 511.
The defendant however contends, that Hinds’s presence at the hospital having been without any intention of taking up his abode in the city, the limitation of five years has not been interrupted, and the action therefore is barred. But it is agreed that the hospital was a public hospital and that he was lawfully there as an inmate, and by the express provisions of § 4, the time during which a person shall have been an inmate of a public hospital is not to be counted, but deducted when computing the period
The defendant’s first, second, third, fourth and fifth requests, that the plaintiff is not entitled to recover, and that the time Hinds was in the hospital could not be considered or counted, and he was absent for five consecutive years, and that if .he had no intention of returning to reside in Fitchburg, but intended to go back to Needham, he wag absent within the meaning of the statute, and had lost his settlement, were properly denied. The questions raised by the sixth and seventh requests, that under the statute a person may lose a legal settlement before acquiring, and without acquiring a new settlement, and that a person who is absent from the city or town in which he has a settlement may be in process of losing his settlement while receiving relief as a pauper, “even though the place furnishing the relief is reimbursed for the same by the said city or town,” are not material, and neéd not be determined.
Judgment for the plaintiff should be entered.
So ordered.