At common law there is no legal obligation resting upon a child to support a parent and in the absence of a positive statute a child is not bound to pay for necessaries furnished to an indigent parent without a contract on the part of such child to pay for them. § 4431, N.D. Comp. Laws, 1913, abrogates the common law rule to the extent of making it "the duty of the father, the *Page 383 mother and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability." Applying that statute to this case we find that it imposed a duty upon the son to maintain the mother to the extent of his ability. This is a duty to the mother which she might have enforced in a proper action. In the absence of an express statute the law does not imply a promise on the part of the child to pay for necessaries furnished without his request to a parent who is poor and unable to support herself. The Supreme Court of California, in construing a statute identical with ours, held, in the case of Paxton v. Paxton, 150 Cal. 667, 89 P. 1083, that the person to whom the duty is owed under the statute may compel the performance of such duty by an action in equity. Thus in this case the mother might by such an action have compelled the son to maintain her to the extent of his ability.
The majority opinion goes much farther and spells out of the statute not only a duty from the son to the mother, but also aliability on the part of the son to pay for hospitalization furnished to the mother by a third party in the absence of a promise on the part of the son to pay therefor. As was said in Belknap v. Whitmire, 43 Or. 75, 72 P. 589, "The statute does not authorize a volunteer who has afforded relief to an indigent party to maintain an action therefor against a child of such party as upon an implied contract arising merely from the moral duty which the child owes to support the parent." See also Lebanon v. Griffin, 45 N.H. 558. In Gray v. Spalding, 58 N.H. 345, it is said that, "Persons of sufficient ability are, by statute, liable to maintain their parents when standing in need of relief. But the statute empowering a town, that performs its duty of relieving such parents, to enforce the liability of the children, does not authorize a volunteer to enforce it."
McCook County v. Kammoss, 7 S.D. 558, 64 N.W. 1123, 31 L.R.A. 461, 58 Am. St. Rep. 854, is cited in the majority opinion. In that case the county being under legal obligation so to do furnished support to an indigent father and brought suit against his children, who were also under statutory obligation to support him. In this case it does not appear that the hospital was under any legal obligation as was the county in the South Dakota case to care for the indigent *Page 384 parent. Further, it does not appear that the parent was received as a charity patient or that the hospital is a charitable institution.
The majority opinion also cites the case of Benson Hospital Asso. v. Dornfeld (Tryon v. Moyer) 130 Minn. 198, 153 N.W. 307, L.R.A. 1915E, 844, wherein the court held that a stranger might recover under a Minnesota statute for hospitalization and medical service furnished an indigent relative. The court says that the duty to support indigent relatives named in the statute is a duty created by statute and does not depend upon contract. I am unable to follow the reasoning by which the Minnesota court then arrives at the conclusion that a stranger may perform the duty which the statute places upon the relatives and recover from the relatives therefor. In that case the court quotes from Robbins v. Homer,95 Minn. 201, 103 N.W. 1023, which this court discusses and differentiates in Mandan Deaconess Hospital v. Sioux County,63 N.D. 538, 248 N.W. 924. In the latter case this court rejected the contention that the statutes providing for the care of the poor placed a liability upon the county to pay private parties for emergency medical and hospital care rendered to an injured indigent in the absence of an authorization by the proper authorities.
One reason which impels me to disagree with the majority opinion is the fact that the last sentence of § 4431, supra, which is not contained in the Minnesota statute and which provides "the promise of an adult child to pay for necessaries previously furnished to such parent is binding." Under the construction adopted by the majority opinion this sentence becomes entirely superfluous. If § 4431 fixes the liability upon a child to pay for maintenance furnished by a stranger to an indigent parent, it was wholly unnecessary for the legislature to provide that the promise of the child to pay for necessaries previously furnished is binding, for the liability would be fixed by the statute and no promise would be necessary to obligate the child.
It is also important to note that § 4431 was originally § 97 of the Civil Code of 1877 and a part of the chapter dealing with the subject of parent and child. Section 98 of the Civil Code enacted at the same time and which is now § 4432, N.D. Comp. Laws, 1913, provides, "If a parent neglects to provide articles necessary for his child, who is under his charge, according to his circumstances, a third person may *Page 385 in good faith supply such necessaries and recover the reasonable value thereof from the parent." It is significant that the legislature thus specifically made the parent liable for the reasonable value of necessaries furnished his child by a third person, but made no provision for the liability of a child for necessaries furnished an indigent parent in the absence of the child's promise. We are not justified in reading into the statute a liability which the legislature obviously intentionally omitted. The demurrer to the first cause of action should be sustained.