Carter v. City of Augusta

84 Me. 418 | Me. | 1892

Haskell, J.

Assumpsit for pauper supplies. It is admitted •that the pauper, a child of tender years, fell into distress and that the defendant became liable thereafter to the plaintiff for its support. But it is' contended, in defense, that the ovei’seers of the poor, of defendant city, offered to remove the child to the city almshouse, and the plaintiff, having refused to allow it to be done, could not thereafterwards charge the defendant with its support.

Whether the plaintiff voluntarily assumed the support of the child, on offer of the defendant to remove it from her custody, w'as a question of fact for the jury. The testimony was coxxflicting, axid the juiy found the issue for the plaintiff. It is not clear that the weight of evidence fails to support the verdict. But it is coixtended that the judge misdirected the jury upoxx that issue. At the close of the charge, a juror asked thecoux’t, in substance, whether a single member of the board of overseers coxild terminate the liability of the city to the plaintiff, by offering to remove the child from her care to the city almshouse. The court replied, " I don’t think that the action of oxie would bo sufficient to terminate the liability after the liability had attached. If you shall find in this case that the termination of the obligation of the city depended upon the action of one of the overseers of the poor alone, I don’t think that that “would be sufficient.”

Taken in connection with the charge, the fair meaning of the court’s answer is, that the removal or offer to remove the child xnust be the act of the board and not the individual, pei’sonal act of one member alone, unauthorized by the board. If more explicit language had been desired to convey the proper meaning, it should have been requested at the time. The offer of a stranger to remove the child from the plaixxtiff’s further care might not, in all cases, remove its necessities as a pauper. Very much would depend upon the circumstances and conditions of each case.

Overseers of the poor are required to determine and direct their action as a body. The action of one overseer is the actioxx of the board when authorized by them; and, in many cases, when consistent with implied authority, although no express authority had been given, becomes the action of the board, whexx. approved or ratified. Linneus v. Sidney, 70 Maine, 114; Smithfield v. Waterville, 64 Maine, 412.

The child was five years of age. The doctrine of Lamson v. Newburyport, 14 Allen, 80, relied upon by defendant does not apply. There, the supposed pauper was an adult, and lived in the plaintiff’s tenement, and might at any time have been ejected therefrom, and was not incapable of going to the almshouse. So in Knight v. Fairfield, 70 Maine, 500, another case cited by the defendant, it was held the duty of the agent of the town to remove a boy ten years old from the plaintiff’s house, where he was in distress, if he would relieve the town from his support, the time of year being winter, and the agent’s house five and one half miles away. A mere direction by the agent to the plaintiff to send the boy to his house was held insufficient, although more a question of fact than of law.

The child, for whose support this action is brought, was of tender years and a pauper at the plaintiff’s house. The defendant might have removed it. Whether the mere offer so to do, if made by the defendant, met by the alleged refusal of the plaintiff to surrender the child, relieved the defendant from its further support, need not be considered here, inasmuch as the controversy is, not what effect legally results from the act done, but whose act it was. The ruling treats particularly of the authority of the actor, not of the effect of the act. The verdict assumes that the act done was not the act of the city, but that, if it had been, it would have worked its release from further liability to support the child. The ruling is, that the unauthorized and unratified act, of one overseer, cannot operate as the act of the board, so that the city shall reap the benefit of it. Until the board attempted the removal of the child, it could not ibe known what course the plaintiff might have chosen to pursue.

If it be said that the refusal of the plaintiff to part with the <child was evidence showing the want of distress, the answer is that was a question of fact, and must have been settled by the jury in ¡her favor ; so the ruling excepted to, as matter of law, was well •enough, inasmuch as it did not take from the jury the question •of the further necessity of the child’s support as a pauper. It merely held that want of authority, in one overseer of the poor, to act for defendant, failed to give his attempted interference with the pauper the same legal force and effect it would have had, if he had been authorized by the board, so that his act would be their act. They had the rig'ht to remove the child to the almshouse ; he had not.

Motion and exceptions overruled.

Peters, C. J., Walton, Virgin, Emery and Foster, JJ., concurred.