I. Section 3595, Code, 1935, as amended by chapter 98 of the Laws of the Forty-eighth General Assembly, and as the section now stands in the Code of 1939, has definitely settled the question for the future, which is involved in this case and which has troubled the court in the past. Under prior decisions of the court, the decision of the majority has support, although I question the soundness of a number of those decisions and the interpretation therein placed upon section 3595, Code of 1935, and the sections corresponding thereto in the earlier Codes. I especially object to basing the majority opinion upon Iowa County v. Amana Society, 214 Iowa 893, 243 N.W. 299, and to the inclusion in the majority opinion of the long quotation from that case. The plaintiff in that case based its right of recovery upon the contractual liability of the defendant, under its articles of incorporation and constitution, to support and care for its old, sick, and infirm members. Its contention was that this contract obligation entitled it to recover against the society, under the provision of section 2297, Code of 1897, which permitted the plaintiff county to recover any sums paid by it in support of insane persons "from any person legally bound for their support." The plaintiff bottomed its case upon that contract. The burden was upon the plaintiff to establish it. The court found and held that it failed to carry this burden. That finding was an end of the case. This was expressed by Justice Kindig in his special concurrence. The general discussion and interpretation of section 2297 in the opinion was wholly unessential to the determination of the case and was dictum. It had no place in that opinion, and has no place in the majority opinion. I question the soundness of the statement on page 898 in the Iowa Report of the Amana case, to wit:
"Reading all these statutes [section 2297] together, the interpretation stands out plainly that the only persons within the legislative mind, to be held liable, were such relatives aswere liable at common law. The statute did not purport to create or pursue new or other liabilities, which might arise out of contract or out of tort." (Italics supplied.) *Page 502
Any such interpretation must be read into the statute. The wording of the statute does not warrant it.
In Monroe County v. Teller, 51 Iowa 670, 672, 2 N.W. 533, 534, cited as support in the Amana case, the court said "relatives," as used in section 1433, Code of 1873, "must be construed to mean the persons from whom the county may collect such claims; that is, `persons legally bound' for the support of the insane person." This language clearly cannot be construed as limiting recovery to "such relatives as were liable at common law."
Further, what warrant is there for saying that any person, relative or nonrelative, who had bound himself by contract to care for an insane person, or one who became insane, would not be liable to the county, and, within the language of the statute, "legally bound for the support of the insane person"? What reason is there for saying, "the legislative mind" did not contemplate such contract liability, or liability other than the common law?
The quotation from the Amana case, page 898 of 214 Iowa, page 301 of 243 N.W., states: "The statute did not purport to createor pursue new or other liabilities, * * *" The court was construing section 2297, Code of 1897. But section 3595, Code of 1935, under consideration in the case before us, expressly states, "The county auditor * * * shall enforce the obligationherein created * * *." (Italics supplied.) This is statutory, and not common-law liability. It is hardly likely that the "legislative mind" contemplated only relatives liable at common law in view of the uncertainty and confusion which existed as to what the common-law liability was in England, and in this country, respecting parental liability for the support of their children. This confusion was noted by this court, in Johnson v. Barnes, 69 Iowa 641, 642, 29 N.W. 759, in this language:
"The obligation of parents to support their children at common law is somewhat uncertain, ill defined and doubtful. Indeed, it has been said that there is no such obligation."
See, also, comment in 74 Am. Dec. 779.
In the Monroe County case, supra, and by quotation therefrom in other of our cases, it is said: *Page 503
"A father is not legally bound to support his adult children at common law, nor under the statutes of this State." (Italics supplied.)
The italicized words are not now, and never have been, a correct statement of the law. In every Code of Iowa, from and including that of 1851, there have been statutory provisions making the parents and other kindred liable for those entitled to support, whether they be minors or adults. Section 787 of the Code of 1851 provided:
"The father, mother, children, grandfather if of ability without his personal labor, and the male grandchildren who are of ability, of any poor person who is blind, old, lame, or otherwiseimpotent so as to be unable to maintain himself by work shall jointly or severally relieve or maintain such poor person in such manner as may be approved by the trustees of the township * * * but these officers shall have no control unless the poor person has applied for aid." (Italics supplied.)
Under this section and later corresponding sections, the parents might be required to support an adult child who was in the unfortunate condition specified. The italicized words do not exclude an insane person, nor one otherwise impotent because of disease or other bodily infirmity.
In the Code of 1851 there were no provisions for the care of the insane in public asylums or hospitals. Such legislation first appeared in chapter 59 of the Revision of 1860. And when, by section 1488 of that Revision, it was provided that county clerks collect "from any person or persons legally bound to support such patient, the amount for which such county is liable for the support of such patient in the hospital," it was intended that "those legally bound" were the persons mentioned in section 787 of the Code of 1851, and in sections 1355 and 1375 of the Revision, and not relatives liable only at common law.
It is a fair assumption that the same intention was in the minds of the subsequent legislatures in enacting similar statutory provisions. In the Code of 1924, and later Codes, the sections corresponding to section 787, Code of 1851, and section 1355 of the Revision, are sections 5297, 5298, 5301, 5309 et al. *Page 504
The court has been quite liberal in construing what steps must be taken to establish such liability. See Boone County v. Ruhl,9 Iowa 276; Hamilton County v. Hollis, 141 Iowa 477, 119 N.W. 978; Bremer County v. Schroeder, 200 Iowa 1285, 206 N.W. 303. I appreciate that this court has held, in Wright County v. Hagan,210 Iowa 795, 231 N.W. 298, following Monroe County v. Teller, supra, that a mother or her estate was not liable for the support of an adult daughter in the state hospital for epileptics and feeble-minded. Also in Blachley v. Laba, 63 Iowa 22, 18 N.W. 658, 50 Am. Rep. 724, a father was not held liable for the services of a doctor called by an adult unmarried daughter in his home. But these decisions must be considered in the light of the facts in each case. It is my view that it has always been the intention of the legislatures, in the enactment of statutes authorizing counties to recover for the care of the insane, to permit recovery from those persons who could be compelled to pay the county for the support of those unable to support themselves, under similar statutes. The basis of their liability in each class of cases is the same. That basis is kinship to the unfortunate persons. The adoption by the Forty-eighth General Assembly of chapter 98 of its laws, in my judgment, was but a clarification of its earlier enactments, and a definite expression of the legislative intent at all times to make those liable for the care of the insane who were and had been subject to liability for the support of the poor, and to set the courts aright in the matter.
II. The patient in this case was the minor son of the defendants. It is undisputed that they were liable for his care and support during his minority. This liability is based upon the fact that they brought him into the world, and his incapacity, both legal and natural, demands that they give him necessary care for his well-being. It is a legal and moral duty, regardless of any statute. It is also a duty to the public. It is the general rule that this liability terminates when the child attains his majority. However, the basis of the liability is the incapacity, either physical or mental, of the child to properly care for himself. Certainly, if a child were an idiot, or became insane during his minority, or was physically disabled by disease or *Page 505 other infirmity, he would be just as incapable of caring for himself the day after he became of legal age, as he was the day before. In such cases the liability of the parent does not automatically and arbitrarily stop when the child reaches his majority, but continues until the necessity for support ceases. 39 Am. Jur. (Parent Child) 645, section 40, and cases cited; Schultz v. Western Farm Tractor Co., 111 Wn. 351, 190 P. 1007, 14 A.L.R. 514. It is a generally accepted rule that where the child, on becoming of legal age, is in such a feeble and dependent condition physically or mentally as to be unable to support himself, the parental obligations and duties toward such a child remain unchanged. 29 Cyc. 612; 20 R.C.L. 586; 39 Am. Jur. 710, 711, section 69; Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541, 42 A.L.R. 146.
The exact condition of the defendants' son is not shown in this record. But he was afflicted with the dread disease of tuberculosis to such an extent as to require hospitalization and care in a state institution. It may be fairly inferred that his condition was such that he was unable to properly care for himself. It is conceded that when he was placed in the sanatorium he was a minor and that the parents were bound, morally, legally, and by the law of nature, to support and care for him at that time and during his minority. The stipulation says nothing about any promise on the part of the defendants to pay for that care. But since it was their legal duty to do so, such a promise may be implied as a matter of law. The son remained in the institution after becoming of age, and received care, support, and treatment. It may be assumed from this fact that his physical disability continued throughout this period, and that therefore the liability and duty of the defendants to see that he was cared for continued, and their promise to pay therefor during that time will also be inferred. The judgment of the court was, therefore, right.
III. Section 3595, Code of 1935, provides that persons legally liable for the support of a patient "shall remain liable" therefor. The defendants were liable when their son was placed in the institution. He was allowed to remain there. The trial court was of the opinion that the quoted words were placed in *Page 506 the statute for a purpose, and must be given some meaning. It was its conclusion that the liability which existed at the beginning remained throughout the time the boy was a patient in the sanatorium. I think there is merit in the court's conclusion. The statute should not be given a narrow construction, nor should the court be overastute to relieve the defendants from a liability which the laws of the state, nature, and of God have placed upon them.
For all of the reasons stated, I respectfully dissent from the majority opinion. I would affirm the judgment of the trial court.
STIGER, HALE, and GARFIELD, JJ., join in this dissent.