Joseph M. Stone, Executor of the Will of Elna H. Wharton, Deceased, Appellant, v. Agnes Wharton Brewster, Appellee, 399 F.2d 554 (D.C. Cir. 1968)

By statute before 1962 the Commissioners of the District of Columbia were required to render public assistance to aged or infirm indigents, and were authorized in certain circumstances to seek reimbursement from designated relatives.¹  In the District of Columbia Public Assistance Act of 1962²  the authority to sue certain relatives for support payments was extended to the indigent dependents themselves.³  Mrs. Elna H. Wharton, an 84 year old widow, invoked that provision in 1964 in this suit against her eldest daughter, in the District of Columbia Court of General Sessions. The trial judge found need for assistance⁴  but denied recovery on the ground that the daughter had satisfied her statutory obligation by offering to provide care in her own home. Pending appeal to the District of Columbia Court of Appeals, Mrs. Wharton died and her daughter moved for dismissal for mootness against the substituted executor. While the Act did not specify when payments became effective, the court construed it to require support only after final determination of the action.⁵  Accordingly the motion was granted. We allowed review because of the importance of the issue in the administration of the Act.

Since the Act is silent on the effective date of support payments we look to the legislative intent. Prior to 1962 liability was imposed only on District residents⁶  and only for certain kinds of public assistance. For example, the Commissioner could seek recovery from relatives of blind and aged indigents, but not from relatives of permanently disabled indigents.⁷  Moreover, under the earlier statute the indigent was ineligible for public assistance if a financially able relative resided in the District.⁸  Consequently if the relative refused assistance the dependent received no support, since he was not empowered to sue and the Commissioners could not proceed against the relative until the dependent had received public assistance. In practice the word of promise to the defendant's ear was often broken to his hope.

The 1962 Act was designed to meet these problems and to provide a more effective administration of public assistance by making "certain relatives responsible for support of needy persons."⁹  Thus that Act specifically extended relative responsibility to all categories of indigents and removed the District residence requirement for responsible relatives. In addition, while Congress continued the Commissioners' authority to recover from the responsible relative "the amount of public assistance granted,"¹⁰  it authorized recovery by dependents who were recipients of public assistance or "in need thereof." [Emphasis supplied.]

Under the present statute the dependent may choose between accepting public assistance, leaving the Commissioners to decide whether a responsible relative should be sued, and directly suing the relative. Having in mind the beneficent nature of the Act and the requirement that the dependent be "in need," we think the dependent must have a reasonable expectation that recovery for his support dates back at least to the commencement of his action. Otherwise his private remedy is not adequate if the law is construed to limit recovery to future needs. And a reluctant relative might reduce his liability by delaying final judgment, or even escape all liability by keeping the litigation going until the dependent dies.

On the other hand fairness dictates that the relative should have notice of the claim for support. We applied this principle to the Hospitalization of the Mentally Ill Act¹¹  which is also silent as to the effective date of a relative's liability for costs of maintaining a child in a hospital. And with respect to the same Act, we held in Beach v. Government of District of Columbia¹²  that unless the relative was so wealthy that he could be equitably assessed for all assistance previously granted, his liability should date from the time, in that case the commencement of the action, he was aware of the dependent's circumstances. Thus in Harris v. District of Columbia¹³  where the parents left large estates we approved the Commissioners' request for retroactive increases in the parents' liability for a child's treatment because they had "notice of their obligation to contribute according to their ability."¹⁴ 

In the present case recovery is sought only from the commencement of the action. Hence, we need not consider whether recovery is warranted before that date. Under the circumstances we think that appellee, long aware of her mother's condition, received sufficient notice from this 3-218 action to require recovery from its commencement.

Appellee argues that even if Mrs. Wharton was entitled to assistance her death abates the action. Since the DCCA dismissed for mootness, it did not consider this issue. We consider it now because it plainly appears that the District of Columbia Survival Act¹⁵  does not require abatement.¹⁶  This broad survival statute was "enacted for the purpose of abrogating, in part at least, the harsh rule of the common law on the subject of survival,"¹⁷  but its terms apply to "any case" in which a right of action has accrued prior to death, with certain limitation in tort cases. We have held that under the express provisions of the Survival Act, rights of action which have arisen prior to decedent's death survive for or against his legal representative.¹⁸  To deny appellant, Mrs. Wharton's legal representative, the right to maintain this action subverts the clear language of the Survival Act.

We refrain from consideration of the merits of the case because we would be benefited by the views of the DCCA in the first instance. We therefore remand the case to the DCCA for further proceedings consistent with this opinion.