Newcomer v. Jefferson Township

• Decision Date: 06 January 1914
• Docket Number: 22,529
• Parties: Newcomer et al. v. Jefferson Township, Tipton County
• Court: Indiana Supreme Court

103 N.E. 843

181 Ind. 1

Newcomer et al. v. Jefferson Township, Tipton County

No. 22,529

Supreme Court of Indiana

January 6, 1914

From Tipton Circuit Court; Leroy B. Nash, Judge.

Action by Martin V. Newcomer and another against Jefferson Township Tipton County. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Reversed.

Gifford & Gifford, for appellants.

John P Kemp and Charles Kemp, for appellee.

OPINION

Myers, J.

Appellants were copartners in the practice of medicine and surgery, duly licensed. A boy fourteen years of age, a resident of appellee's township, while riding on a freight train, without right, fell off. His right leg was crushed off just below the knee, and the heel and sole of the left foot were crushed. Suit was instituted by appellants against the township for surgical and medical attention rendered the boy, by a complaint which after alleging the foregoing facts, alleged that in October, 1906, the boy was about fourteen years of age, had no money, property or means of any kind, character or description, and no expectancy of any kind. That his father was a resident of the township, but had no home to which to remove the boy, had no money or property of any kind or character, but was wholly and entirely destitute of means of any kind or description. That the boy was removed to the home of one Bunch of Jefferson Township, and there cared for by the said Bunch as a matter of charity. That the boy had no relatives that were able to care for him. That in a few moments after the injury hereinbefore described, plaintiffs were called to the boy, and found him suffering, with a copious hemorrhage from the leg which had been crushed off. That the physical condition of the boy was such that delay in the treatment was sure to result in death to the boy from hemorrhage, and from the effects of the shock. That it was about ten miles to the township trustee of Jefferson Township, and that there was no means of reaching him by telephone or otherwise, except to visit him by buggy, or some like conveyance. That the accident occurred about nine o'clock at night, and that a delay necessary even to telephone, had there been a line of telephone, or to communicate by other means, might and would have resulted in the death of the boy. That under the emergencies existing, plaintiffs took charge of the boy, amputated the leg that was crushed, just below the knee, and dressed the same; also amputated and removed the mashed sole and heel of the other foot, giving it the necessary dressing, and rendering all the services necessary and proper. That they remained with him all night, caring for him, and giving him such restoratives and stimulants as were proper and necessary on account of the emergency and urgency of the case as hereinbefore set out; that there was an appropriation by the advisory board of the township of Jefferson for the purpose of paying medical expenses for indigent and poor persons of said township for each of the years 1906, 1907, 1908 and 1909; that defendant during the year 1906, had no physician employed to treat the poor of said township. That the trustee of Cicero Township resided eight miles from the city of Tipton, and that there was no means of communicating with him, except by messenger, traveling by horse and buggy, or some such transportation, and the boy would have died before communication could have passed between said trustee and these plaintiffs. That plaintiffs knew that the boy's life depended upon the prompt treatment of his said injuries, that they also knew he was a pauper, but believed the defendant was liable for the services, rendered under the emergency of the case; they rendered such services on the credit of the defendant, and not otherwise; that they have frequently demanded pay for their services from said township, which demand has been refused; that the services in the amputation of said leg, and dressing the foot, and medical services rendered at said time are of the value of $ 150, which is due and unpaid, and demand is made therefor. A demurrer for want of facts was sustained to this complaint, and the ruling is the sole alleged error presented. The suit was begun February 15, 1908.

It is the contention of appellee that townships are not liable for relief to poor or necessitous persons outside of public institutions for surgical or medical aid, however necessitous, irrespective of the circumstances or conditions unless it is directed by the overseer of the poor; that he is the sole and conclusive judge of the necessity, and as to whom he will or will not employ to render aid, and as to whether aid shall be rendered. It may be conceded as a general rule that a claim against a county or township, can only be founded upon a contract with the proper officer under authority of a statute, acting within the scope of his statutory authority, or upon a statute. Prior to the enactment of 1901 (Acts 1901 p. 323, § 9741 et seq. Burns 1908), we had in this State a number of disconnected statutes touching the subject of the care of the poor, and poor relief, and the burial of the poor and destitute sailors and soldiers, but by that act the entire subject was revised. Prior to that time the expense of care and burial of the poor was chargeable against the counties, as were also, and are yet, the charges for the interment of indigent soldiers and sailors. Since the passage of that act, the expense of care and burial of the poor other than soldiers and...