357 Mass. 206 | Mass. | 1970
The plaintiff brought an action against the defendant pursuant to G. L. c. 123, § 96, to recover from him for the support of his wife, Anna B. Cunniff, while she was a patient at the Medfield State Hospital during the period of March 1, 1946, through December 31, 1965.
A judge of the Superior Court sitting without jury heard the case and found for the plaintiff in the sum of $18,876.64, plus interest from the date of the writ in the sum of $2,280.84. He ruled on thirteen requests for rulings filed by the defendant, granting the first to fourth inclusive and denying
1. The affidavit of Dr. Lindberg stated that Anna B. .Cunniff was a patient at the Medfield State Hospital and a public charge of the Commonwealth during her hospitalization; that Robert E. Cunniff, the defendant, is the husband of Anna B. Cunniff; and that the determination of the price of the support of the patient was in accordance with the provisions of G. L. c. 123, § 96, which amount was unpaid.
2. In responding to the plaintiff’s notice to admit or deny facts, the defendant gave his residence as 393 Brookline Street, Newton, and stated that he was the owner of land and buildings at that address and that the property was assessed for tax purposes by the city of Newton at $25,000. He further admitted that he is a stockholder in R. E. Cunniff, Inc., a corporation, and that Anna B. Cunniff, his wife, had been a patient at the Medfield State Hospital since March 1, 1946. Requests for rulings raise a question whether the defendant is “of sufficient ability” to pay the price of the support for bis wife which under G. L. c. 123, § 96, may be recovered from him if he possesses that ability. Under that section the term “sufficient ability” has been interpreted to mean “present ability” or sufficient ability at the time when the writ was brought, in this case January 26, 1966. Chapin v. McCurdy, 196 Mass. 63, 65-66.
While the defendant admitted that he was the present owner of property assessed by the city of Newton at $25,000, and was a stockholder in a corporation .bearing his name, there was no evidence adduced by the plaintiff to indicate the true value of his holdings in the real estate and the corporation. It was incumbent upon the plaintiff, seeking relief as it did under G. L. c. 123, § 96, to offer such proof. Sullivan v. Quinlivan, 308 Mass. 339, 342. The plaintiff had the burden of demonstrating to the satisfaction of the court that the assets of the defendant, both real and personal in terms of available cash, were sufficient to warrant the judge’s finding. This was not done.
The entry must be
Judgment for the defendant.
The computations referred to in the affidavit appear in the record.