5 Ind. App. 567 | Ind. Ct. App. | 1892
The material facts involved in this case are as follows: On the 10th day of August, 1889, one Mathias Sitzman was a pauper, living in Clarke township, Perry county, Indiana, and had at that time been confined to his bed for six weeks with a diseased leg and was very much emaciated and in a critical condition ; that in order to save his life an amputation of his leg was necessary; that in June, 1889, a physician by the name of Foster was employed by the board of commissioners of said county to render medical aid to the poor of said township, he having graduated as a physician upon the 21st day of February of the same year. At the time it became necessary to perform the operation above mentioned, the said Foster was inexperienced in surgery, and had no surgical instruments, and lived fifteen miles distant from this pauper. The township trustee, knowing the critical condition of the pauper, and believing from the facts above mentioned, that the said Foster was wholly incompetent to perform the needed operation, procured two physicians of experience to visit the patient and if necessary amputate his leg. After making due examination they declined to do so, giving as a reason that in their opinion he would not survive the operation. The trustee, having information that an operation by a skilled surgeon was absolutely necessary to save the pauper’s life,
“Dixon Valley, Ind., Aug. 10, 1889.
“ Dr. Wm. Lomax, Bristow, Indiana:
“Dear Sir: You will please go and examine Mathias Sitzman, a pauper of Clark township, Perry county, Indiana, and if in your judgment his leg should be amputated, call a legal board of physicians, yourself included, and per-fore the operation, and also give him all necessary medical assistance, and charge Perry county a reasonable bill for said services. M. M. Dixon,
“ Overseer of the Poor, Clark Township.”
Thereupon the appellee took charge of the pauper as his patienf;, and after making 'the proper preparation amputated his leg and attended him until he recovered, charging for his services the sum of $150. He presented his claim, properly verified, to the board of commissioners and payment was refused. He appealed to the Perry Circuit Court and there obtained a judgment against the county for $140. A motion for a new trial was filed and overruled,and a judgment rendered against the county. From this judgment the board of commissioners appeal to this court, and assign as error the action of the court below in overruling the motion for a new trial.
In the complaint it was charged that Foster, as the township physician, “ refused to do and perform the said operation, giving as a reason for his refusal that he was not sufficiently experienced in surgery ; that he did not have the necessary instru.ments to perform such an operation, and that he resided at too great a distance from the said Sitzman to render him the proper attention after the operation had been performed.” There was evidence given at the trial tending to prove that the said Foster was not qualified to perform the operation by reason of a want of skill and experience, yet it did not appear that he had been requested so to do by the trustee before the appellee was employed. Did this constitute a fatal variance between the allegation and proof? It
The purpose of the appellee in bringing this suit was to recover money which he claimed was due him from the appellant for services rendered. The material question, therefore, was, did such indebtedness exist? The mere fact that the trustee did not request the county physician to perform the operation required was, under the circumstances, wholly unimportant.
The law, looking through the shadow to the substance, required no such useless formality. It was shown at the trial that such physician had no experience as a surgeon ; that the operation to be performed required great skill, which he did not possess. If the trustee, having knowledge of these facts,
Section 6069, R. S. 1881, makes it the duty of counties, as such, to “ relieve and support all poor and indigent persons lawfully settled therein.” Section 6066 provides that “ The township trustees of the several civil townships of the State shall be the 'overseers of the poor’ within their respective townships.” Section 6071 provides that the “ overseers of the poor ” shall have the oversight and care of all poor persons in their respective townships as long as they remain a county charge, and “ shall see that they are properly relieved and taken care of.” Thus it will be seen that paupers are a county charge; that a township trustee, as an
The mere fact that a board of commissioners employs physicians to attend the poor of a county will not operate as a limitation upon the power of a township trustee to employ others in cases of emergencies. Board, etc., v. Osburn, 4 Ind. App. 590; Washburn v. Board, etc., 104 Ind. 321; Board, etc., v. Ritter, 90 Ind. 362; Board, etc., v. Seaton, 90 Ind. 158; Conner v. Board, etc., 57 Ind. 15; Morgan County v. Seaton, 122 Ind. 521. The law upon this point is well and tersely stated by Crumpacker, J., in Board, etc., v. Osburn, supra, in the following words : “ There is but one power to employ medical attendance upon the poor, and when that is exercised by the board of commissioners the trustees are without authority respecting it. But in the event the physician employed by the board of commissioners abandons the contract or refuses to perform it, or is at such a distance that his attendance can not be readily procured and an emergency exists, it is equivalent to no provision by the county, and the trustee is authorized to act. * * Upon the same principle, if the county physician lacked the skill and experience necessary to render reasonably efficient services in any case, and the dictates of humanity seemed to require it, the trustee would be authorized to employ special medical assistance. Section 5764, R. S. 1881, contemplates the employment by the county of reasonably skilful physicians who' are conveniently accessible, and if, for any reason, there is no such physician to treat a given case, the trustee may employ one.”
“ The question as to the necessities of persons relieved is a matter for the determination of the trustee, and, in the ab
The judgment is affirmed, with costs.
Reinhard, J., was absent.