42 Ind. App. 645 | Ind. Ct. App. | 1907
Appellee, a resident of the city of Greenfield, and secretary of the board of health thereof, sued said city for compensation for services alleged to have been rendered by virtue of a contract with said city during an epidemic of smallpox in the year 1902.
The complaint is in three paragraphs. The first alleges, in substance, that appellee is, and was at the time, a legally licensed physician; that an epidemic of smallpox broke out in said city during the year 1902; that the common council, béing duly authorized, contracted with appellee to treat and prescribe for all persons infected with, or exposed to, said disease, at the rate of $20 per day; that appellee performed such services for a period of seventy-one days, for which he demanded judgment in the sum of $1,420.
The second paragraph avers, in substance; the same facts, also alleging that appellee’s services were reasonably worth $20 per day, instead of averring that the agreed compensation was $20 per day.
The third paragraph avers that said epidemic broke out in said city on October 20, 1902; that there was no hospital or other place where persons infected with said disease could be treated; that, for the protection of the inhabitants of the city, and for the preservation of the lives and health of those infected, it was very urgent that persons so infected should have proper medical treatment; that the ordinary physicians of said city would not undertake such treatment, and that persons infected were wholly without medical aid, unless the city authorities provided it; that appellee was secretary of the board of health of said city, but was not required to take upon himself the treatment of such persons; that the mayor and common council requested appellee to attend such persons ; that, by reason of the request, he did so treat such persons for a period of seventy-one days; that his services were worth $20 per day; that no part of said sum has 'been paid, and the persons treated are unable to pay the same. Judgment was.asked in the sum of $2?000.
This case is similar to the case of City of Ft. Wayne v. Rosenthal, supra, and in passing on the question of emergency in that case Judge Wood said: “The emergency, if it existed at all, was such as called for immediate and authoritative decision upon the case of each applicant. * * * The antagonism between the appellee’s private interest and his public duty, it is manifest, was very great, and calculated to cast suspicion upon his discharge of duty, no matter how faithfully and conscientiously it was done. Let it be understood that such personal advantage may result to a member of the board, and suspicion not only attaches to his selection of those who may be served at public expense, but it extends to and taints the original decision and declaration of the board that, an emergency existed which required the work to be done.'”
The evidence shows that a number of physicians, who .were not connected officially with the city administration, lived in said city, some of whom, doubtless, could have been employed to take charge of these patients; that, at least in one instance, appellee voluntarily took charge of patients when they were under the care of their family physician; - that for the third time during the year 1902 an epidemic broke out in said city; that appellee went to the council chamber and notified the members of the council of the presence of the disease; that he was then and there employed to look after and care for these patients, after having made little or no effort to employ some one, not an officer of the city, to care for them. Taking the evidence as a whole, and tested by the cases cited, it fails to establish such a state of facts, as to the existence of an emergency for the employment of the appellee, as to - justify a recovery.
The judgment of the trial court is, therefore, reversed, with directions to sustain appellant’s motion for a new trial.