24 S.W. 883 (Ark. 1894), Spearman v. Texarkana

Citation:24 S.W. 883, 58 Ark. 348
Opinion Judge:MANSFIELD, J.
Attorney:Scott & Jones for appellant. W. H. Arnold and John N. Cook for appellee.
Case Date:January 13, 1894
Court:Supreme Court of Arkansas

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24 S.W. 883 (Ark. 1894)

58 Ark. 348




Supreme Court of Arkansas

January 13, 1894

Appeal from Miller Circuit Court, RUFUAS D. HEARN, Judge.

Judgment reversed and cause remanded.

Scott & Jones for appellant.

Appellant was not an officer of the city. He was a physician selected by the board of health to perform certain services, and was entitled to recover for his services. 26 P. 674; 45 Ill. 397; 32 Wis. 124; 2 Brock. 103; 29 Oh. St. 349. See also 50 Ark. 81; 30 Vt. 285; 1 Dill. Mun. Corp. (4th ed.) sec. 230, note 3.

W. H. Arnold and John N. Cook for appellee.

1. No fee was provided by law, and none can be recovered. 25 Ark. 235; 32 id. 45.

2. Being a member of the board of health, it was against public policy for appellant to make a contract with the board. 25 Wis. 551; 1 Dill. Mun. Corp. sec. 444, 458; Greenhood on Public Policy, 297, 305; 11 Mich. 222; 60 Ga. 221; 72 Ind. 42; 79 id. 42; 75 id. 156; 22 N.Y. 332; 37 id. 317; 10 Am. Rep. 5.

3. The law expressly provides that the board shall receive no pay. Mansf. Dig. sec. 486.


[58 Ark. 349] MANSFIELD, J.

By an ordinance duly passed, the city of Texarkana established a board of health, to be composed of the mayor, the city attorney, three aldermen and one physician of the city. The board was invested with all the usual and necessary powers to effect the purpose of its organization, which was declared to be the protection of the city against "contagious, malignant and infectious diseases ;" and the ordinance provides that all expenses incurred by the board shall be certified to the city council by the president and secretary for allowance and payment, as other claims against the city.

The appellant, a practicing physician of the city, and not one of its officers, was elected as the medical [58 Ark. 350] member of the board, and, while serving as such, was directed by the board to make personal examination of a case of diphtheria said to exist in the city, and the alleged existence of which had caused the closing of the public schools. He examined the case in person, and made a report upon it to the board. There was no express agreement for this service, and before rendering it the appellant did not inform the board that he would expect a compensation. Several months after the service was rendered, he brought this action in a justice's court to recover for it the sum of fifty dollars. The case was taken by appeal to the circuit court, where a trial by jury resulted in a judgment for the city.

The only ground on which a recovery by the plaintiff was resisted is indicated by an instruction given to the jury at the defendant's request, and which was

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that if they found "that the plaintiff was a member of the board of health * * * when he was requested by said board to perform the services charged in the account sued on, and that he was a member of said board when he performed said services," their finding should be against him. This instruction was objected to by the plaintiff, who requested the court to charge that the verdict should be for the plaintiff if the jury found that the board had authority to employ a physician to render for the city a...

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