City of Haverhill v. City of Marlborough

• Decision Date: 04 January 1905
• Citation: 72 N.E. 943,187 Mass. 150
• Parties: CITY OF HAVERHILL v. CITY OF MARLBOROUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 150

72 N.E. 943

CITY OF HAVERHILL v. CITY OF MARLBOROUGH.

Supreme Judicial Court of Massachusetts, Essex.

January 4, 1905

COUNSEL

Essex S. Abbott, City Sol., for plaintiff.

Jas. W McDonald, for defendant.

OPINION

BARKER J.

The expenses for which repayment is sought were incurred by the city of Haverhill in consequence of the falling ill with smallpox within its limit of two persons whose settlement was in Marlborough. The expenses were incurred between February 27, 1902, and the 5th day of the following April.

In the lower court the case was tried without a jury upon the pleadings and an agreed statement of facts, and a finding was made for the plaintiff in respect of a part only of the items declared for. Both parties appealed to this court, and the defendant filed also a bill of exceptions. The agreed statement of facts gave the court no power to draw inferences of fact. For this reason the plaintiff contends that the defendant had no right of exception. But rulings of law made upon the trial of a cause upon an agreed statement of facts are rulings by which either party to the cause may be aggrieved, and the right to allege and prosecute such exceptions is conferred by statute. Rev. Laws, c. 173, §§ 105-110. But in cases like the present it is wholly useless, and therefore bad practice, to prosecute exceptions, for the reason that no relief can be given to the excepting party upon his bill of exceptions which would not be open to him upon an appeal merely. Neither the court of first instance nor this court can draw inferences of fact when the agreed statement has no clause giving that power. The final decision in such a case is that required as a matter of law by the application of correct principles of law to the facts agreed. All questions of law material to the decision are therefore open upon the appeal, and, if the court below has made an erroneous ruling upon a question of law not material to the decision, the error furnishes no ground for a reversal of the judgment, and it is useless to ask us to revise it upon exceptions. See Rand v. Hanson, 154 Mass. 87, 91, 28 N.E. 6, 12 L. R. A. 574, 26 Am. St. Rep. 210; Norton v Brookline, 181 Mass. 360, 364, 63 N.E. 930.

When the expenditures of the plaintiff began, on February 27, 1902, its power and duty to incur them, and its right to recover on account of them, were regulated by the provisions concerning hospitals and dangerous diseases contained in Rev. Laws, c. 75, §§ 35-57; the duty of repayment being imposed by section 57, and the right of action being conferred upon the municipality by section 54. Before the expenditures had been completed, on April 5, 1902, the Legislature had enacted St. 1902, p. 156, c. 213, which took effect on March 26, 1902.

The defendant contends that the plaintiff can take nothing by its suit, because it had not established an isolation hospital, in accordance with the provisions of Rev. Laws, c. 75, § 40, and also because the persons ill with smallpox were not removed to a hospital, but were kept in the dwelling where they fell ill. We think these contentions unsound. In the first place, section 40, which provides that 'each city shall establish and be constantly provided, within its limits, with one or more isolation hospitals for the reception of persons having smallpox or any other disease dangerous to the public health,' provides its own penalty, which is a forfeiture of not more than $500 for each refusal or neglect to comply with the provisions of the section upon request of the State Board of Health, and does not enact that all persons ill with smallpox, or any such persons, shall be treated in such hospitals and not elsewhere. In the next place, under the provisions of section 42, which, under Rev. Laws, c. 8, § 5, cl. 23, we construe to apply to cities, it was within the power of the proper officers of the plaintiff either to remove the persons who had fallen ill to a hospital, or to care for them in the house where they resided; nor could the persons lawfully be removed to any hospital unless, in the opinion of the plaintiff's board of health and of the attending physician, the case could not be isolated properly in the house where the patients resided. Rev. Laws, c. 75, § 56.

The expenses for which the plaintiff seeks to recover are of several classes, one only of which was allowed for in the finding for the plaintiff in the court below. The expenses so allowed were for the services of a physician, medicines household supplies, and rent of the house. The only question raised by the defendant as to the expenses of this class, if the plaintiff is held to be entitled to recover at all, is as to the services of the physician. He was employed on February 27, 1902, to go to the house and remain there to attend and care for all persons in the building who then were or might be ill of smallpox, and he remained in the house under that employment until April 5, 1902. No other persons in the house fell ill with smallpox, except the two who had settlements in Marlborough. His agreed compensation for the service was to be a certain sum per week for such time as his services should be required at the house, and for two weeks' quarantine thereafter, and the charge for his services in the plaintiff's bill of particulars includes the agreed compensation for the two weeks after he left the house. It is agreed that the prices charged in the bill are reasonable for the services rendered, and from this it follows, as a conclusion of law, that the amount paid the physician...