Fears v. Nacogdoches County

• Decision Date: 09 October 1888
• Parties: FEARS <I>v.</I> NACOGDOCHES COUNTY.
• Court: Texas Supreme Court

9 S.W. 265

FEARS

v. NACOGDOCHES COUNTY.

Supreme Court of Texas.

October 9, 1888.

Appeal from district court, Nacogdoches county; JAMES L. PERKINS, Judge.

George F. Ingraham and W. G. Ratcliff, for appellant.

GAINES, J.

The appellant, a practicing physician, was summoned to attend upon two different inquests, in Nacogdoches county, upon dead bodies, for the purpose of making post mortem examinations. Being threatened, by the justice who summoned him, with an attachment, he appeared, made the examinations, and subsequently presented to the commissioners' court an account for an allowance of the sum of $20 in each case. The court allowed his account to the amount of $5 in each case, and rejected it for the balance. He brought suit in a justice's court, and appealed from the justice's judgment to the district court, where he obtained a judgment for $10 only. The county acquiesces in the judgment, and he alone appeals. The court found that he rendered the services as claimed by him, and that, according to the regular charges of physicians in the county, they were reasonably worth the sum of $20 in each case. The sole question to be determined, therefore, is: Can a county be held liable to pay a physician his reasonable fees, who makes a post mortem examination at a coroner's inquest? During the progress of a murder trial it was said by Chief Justice GIBSON that "an action lies against the county at common law by a physician for trouble and labor expended in such examination," (Com. v. Harman, 4 Pa. St. 269;) and in the subsequent case of County of Allegheny v. Shaw, 34 Pa. St. 301, the supreme court followed this direction, and affirmed a judgment against a county in favor of the physician for such services. In Indiana it is held that the county is responsible, but this seems to be by virtue of a statute. Stevens v. Commissioners, 46 Ind. 541. We find the case of Sherman v. Supervisors, 30 How. Pr. 173, cited in favor of the doctrine of the liability of the county, but the volume is not accessible to us at this branch of the court. However, this matter seems to be regulated by statute in New York, since it is held in Van Hoevenbergh v. Hasbrouck, 45 Barb. 197, that, under the statute of that state, the coroner has the right to employ a physician in such cases, and charge for the physician's services in his account against the county, but that the latter must look to the coroner for his compensation, and cannot recover of the county. See Crock. Sher. § 929. We have not been able to find in the English authorities anything showing the liability of the counties in such cases, but it is to be noted that at common law the coroner himself was not entitled to charge fees for his services. An allowance was subsequently provided by statute. 2 Bac. Abr. "Coroner," G. If we are to resort to general principles, we are at a loss to determine upon what ground the county is to be held liable...