City of Waltham v. City of Newburyport

| Mass. | Jan 4, 1890

Devens, J.

In Newburyport v. Waltham, ante, 311, it was held that the evidence from the certificate of the examining surgeon made at the time of the enlistment of Samuel W. Haynes as a part of the quota of Waltham, and from the certificate of the surgeon upon which he was discharged from the service of the United States, at a subsequent period, was sufficient to warrant the court in finding that Samuel W. Haynes became disabled while serving as a part of that quota. The same evidence was received in the case at bar, and, the presiding judge having found for the defendant, such finding is warranted, unless he has refused to receive some of the evidence offered by the plaintiff by which such finding might or should have been controlled.

It has been often held that the certificate of the surgeon upon which a soldier is discharged is conclusive evidence of the cause and manner of his discharge. Fitchburg v. Lunenburg, 102 Mass. 358" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/inhabitants-of-fitchburg-v-inhabitants-of-lunenburg-6415788?utm_source=webapp" opinion_id="6415788">102 Mass. 358, 361. Hanson v. South Scituate, 115 Mass. 336" court="Mass." date_filed="1874-06-26" href="https://app.midpage.ai/document/inhabitants-of-hanson-v-inhabitants-of-south-scituate-6417722?utm_source=webapp" opinion_id="6417722">115 Mass. 336. This certificate does not in terms state that the disease by reason of which he was discharged was contracted after his enlistment, but when taken in connection with that made at the time of his enlistment justifies that inference. Nor could this be controlled by evidence of the declarations of Haynes, made two years after upon an application for State aid, nor by the certificate of the surgeon who examined him at that subsequent time, and which, by its recitals, appears to have been largely based upon Haynes’s declarations, nor by the fact that the defendant city paid to Haynes the State aid for which, it was subsequently reimbursed by the State, upon the application of the mayor and aldermen. This latter fact cannot, as the plaintiff contends, be treated as an admission by the defendant city of its responsibility for Haynes by which it would be bound in a controversy with the plaintiff as to the settlement of Haynes. The evidence offered by the plaintiff was therefore properly rejected.

This view of the case renders it unnecessary to consider whether the plaintiff could now recover back the money paid by it under its agreement with the defendant city, or to pass upon the other defence suggested.

Exceptions overruled.