Yantis v. Montague County

• Decision Date: 25 April 1908
• Citation: 110 S.W. 161
• Parties: YANTIS v. MONTAGUE COUNTY et al.
• Court: Texas Court of Appeals

110 S.W. 161

YANTIS v. MONTAGUE COUNTY et al.

Court of Civil Appeals of Texas.

April 25, 1908.

Appeal from District Court, Montague County; Clem B. Potter, Judge.

Action by G. R. Yantis against Montague county and others. From an adverse judgment, plaintiff appeals. Affirmed.

Graham & Williams, for appellant. Chas. F. Spencer and Chambers & Cook, for appellees.

CONNER, C. J.

Appellant instituted this suit against Montague county and her county judge and other members of the commissioners' court to recover the sum of $1,212 on account of services rendered by him as a physician during an epidemic of smallpox. The suit was later dismissed as to the county judge and members of the commissioners' court, and upon the hearing appellees' general demurrer to the petition was sustained. Appellant having declined to amend, the suit was dismissed, and the questions presented to us on this appeal relate alone to the sufficiency of appellant's petition.

Appellant alleged that the disease named was contagious, and had reached proportions threatening the welfare of the entire county, whereupon the county judge and other members of the commissioners' court, "acting by and through J. K. Thomas," one of the commissioners, "entered into a contract with the plaintiff, who was then and is now a practicing physician living in Montague county, Tex., the tenor and effect of which contract was that said plaintiff would give his personal time and attention professionally to the prevention of further spread of said disease and to relieving those then afflicted therewith, thus preventing universal spread of said disease and resulting in a suppression thereof, said defendants agreeing with said plaintiff that plaintiff should be adequately compensated for the services so to be rendered by him." It was alleged that pursuant to the contract appellant rendered the amount of service as shown in an itemized list referred to, and that such services were reasonably worth the several amounts charged therefor, which aggregated the sum for which he sued.

There was an effort made in the petition to further show liability on the part of Montague county on the ground that the contract before mentioned had been expressly approved by the county judge, George S. March, acting for Montague county, which it is contended operated in effect as an appointment as county physician, for whose services as specified the county was liable. But whether, as appellant insists, a liability exists for services so performed, in the absence of an established quarantine, which is not alleged, and in the absence of any salary agreed upon, as required by Rev. St. 1895, Art. 4339, we need not decide. Nor need we determine the legal effect of the contract declared upon, inasmuch as there is no allegation in appellant's petition that the claim sued upon, by whatever right prosecuted, had been presented to the commissioners' court of Montague...