Lamar v. The Board of Commissioners of Pike County

• Decision Date: 18 March 1892
• Docket Number: 450
• Citation: Lamar v. The Board of Commissioners of Pike County, 4 Ind.App. 191, 30 N.E. 912 (Ind. App. 1892)
• Parties: LAMAR v. THE BOARD OF COMMISSIONERS OF PIKE COUNTY
• Court: Indiana Appellate Court

30 N.E. 912

4 Ind.App. 191

LAMAR v. THE BOARD OF COMMISSIONERS OF PIKE COUNTY

No. 450

Court of Appeals of Indiana

March 18, 1892

From the Pike Circuit Court.

Cause reversed.

F. D Posey and D. Q. Chappell, for appellant.

E. A Ely, S. G. Davenport and W. J. Thurman, for appellee.

OPINION

ROBINSON, C. J.

The appellant filed a claim before the Board of Commissioners of Pike county in the nature of an account for medical services rendered a prisoner in the county jail of said county. At a regular session of the board of commissioners of said county the claim was rejected and disallowed, from which order, in rejecting and disallowing said claim, an appeal was taken to the Pike Circuit Court. In the circuit court a demurrer was sustained to the claim as filed before the board of county commissioners, and the ruling on the demurrer was not excepted to. The appellant then filed an amended complaint, to which the appellee filed a demurrer, which was sustained, and exception saved. The appellant refusing to plead further, judgment was rendered on the demurrer. The appellant claims, under the assignment of error, that the court erred in sustaining the demurrer to the amended complaint. The amended complaint alleged, in substance, that on the 28th day of March, 1890, a person therein named was confined to the jail in Pike county, and under the custody of one Smith, who was at the time the agent of the appellee and the keeper of said jail; that the secretary of the board of health of said county resided twelve miles distant from said jail, and that, by the means of communication to reach said secretary of the board of health, it would have required four hours to have procured his presence at said jail; that, on the day aforesaid, said prisoner was suddenly seized with a violent illness, as therein alleged, which was of such a dangerous character that a delay for an hour would have resulted in the loss of the life of said prisoner; that by reason of the distance of the secretary of the board of health, as aforesaid, his attendance and service could not be had, when said Smith called upon the appellant, who lived near to said jail, and was a regular practicing physician, to treat said prisoner; and the appellant, under said employment, did so treat said prisoner as to relieve him of such dangerous sickness and save his life; that his services were reasonably worth the amount claimed therefor, which amount was due and remained unpaid, etc.

Counsel for the appellee contend that the amended complaint was bad under section 5764, R. S. 1881, which provides that it is the duty of the board of county commissioners to "contract with one or more skilful physicians, having knowledge of surgery, to attend upon all prisoners confined in jail, or paupers in the county asylum, and may also contract with physicians to attend upon the poor generally in the county; and no claim of a physician or surgeon, for such services, shall be allowed by such board except in pursuance of the terms of such contract Provided, That this section shall not be so construed as to prevent the overseers of the poor, or any one of them, in townships not otherwise provided for, from employing such medical or surgical services as paupers within his or their jurisdiction may require." This statute went into force March 5th, 1859, and would seem to sustain the contention of the appellee but, in so far as it relates to the employment of physicians to attend upon all prisoners confined in jail, was clearly repealed by section 4993, R. S. 1881, which went in force September 19th, 1881. That statute provides that "The trustees of each town, the mayor and common council of each incorporated city (except where a regular constituted board of health, by ordinance of such city, now exists or may hereafter be created), and the board of county commissioners of each county shall constitute a board of health, ex officio, for each of the several towns, cities, and counties respectively of the State, who shall perform such duties respectively required of them by this act without compensation. They shall annually, in the month of January, complete their organization by the election of a secretary, who shall be a physician. The secretary of such local boards of health, and the secretary of any regular constituted board of health of any incorporated city, shall be the health officer of every town, city, or county, respectively, for the purposes provided in this act, and shall be allowed such compensation from the town, city, or county treasury, respectively, as the board electing them may determine: Provided. That the secretary of each county board of health shall render such medical and surgical services as may be required by persons confined in the county jail of such county, and such other medical services as may be required of him by the...