44 N.H. 28 | N.H. | 1860
The questions arise upon the correctness of the instructions to the jury; and the first position was, that if a pauper falls suddenly sick, and is in immediate want of medical assistance before the overseers can be applied to, a physician may render the assistance needed, until application can be made, and charge the town for it. To support these instructions no direct authority is cited or found by us; but they are attempted to be sustained upon the ground that there is a legal duty upon the overseers to furnish the relief, whether the town was ultimately liable or not; and, as the emergency was such as not to admit of an application to the town, the law would imply a promise to pay for the assistance needed before an application could be made.
The basis of this argument is, that inasmuch as the duty exists on the part of the town to furnish this specific relief, the services of the plaintiff must be regarded as rendered for its benefit. And it is likened, in the plaintiff’s ingenious and able argument, to the case of the husband or father, who, by a palpable omission of duty— such as turning the wife or child out of doors, aud refusing to provide for them — enables them to pledge his credit for necessaries. In regard to the ease of the child, there is much conflict in the authorities, but the settled doctrine of the English courts now seems to be, that the moral obligation of the parent to support his minor child imposes no obligation to pay his debts, unless he has given him authority to incur them, and that the contract of the father must be proved, just in the same manner as if he were a brother, son, or stranger. To this effect is the leading case of Mortimer v. Wright, 6 M. & W. 482, decided in 1840; and in the same general direction are the cases cited in 1 Smith’s Leading Cases 70, 226, and Shelton v. Springet, 11 C. B. 452 ; 20 Law & Eq. 281.
The early New-York cases held that a clear and palpable omission of duty by the parent would give the child credit, and render the parent liable for necessaries. Van Valkenburg v. Watson, 13 Johns. 480, and several other cases following it, including In re Ryder, 11 Paige Ch. 188; 2 Kent Com. 191. In the later case of Raymond v. Loyle, 10 Barb. 483, the cases sustaining this doctrine are examined and questioned, and the conclusion finally reached that there is no legal obligation to maintain a minor son independent of statutes, as held by Parke, Baron, in Mortimer v. Wright. The doctrine of Mortimer v. Wright is fully sustained by Redfield, J., in Gordon v. Potter, 17 Vt. 348, where the cases are reviewed. See also 16 Johns. 281. The doctrine of VanValkenburg v. Watson is recognized in Pidgeon v. Cain, 8 N. H. 350, although the court refused to apply it to that case, as it did also in Townsend v. Burnham, 33 N. H. 270.
Without undertaking to decide what is the law of New-IIampshire, it is quite evident that the tendency of the modern authorities is to limit the liability of the parent for necessaries to cases where they are furnished at his request, express, or to be inferred by a jury from the circumstances, upon the general ground as stated in Bainbridge v. Pickering, 2 W. Black. 1325 ; that no one shall take it “ upon him to dictate to a parent what clothing a child shall
It is urged, also, that this case comes within the principle of the cases cited in Chit. Cont. (9th Am. Ed. 19), of an implied promise by the husband to pay the funeral expenses of the deceased wife, incurred by a third person in the absence of the husband ; and also by an executor, having assets, to pay for the funeral of the testator. In respect to the latter it would seem to be regarded only as a charge upon the assets, and not as the promise of the executor; and so it is intimated in Thurston v. Newcome, 4 A. & E. 899. But however this may be, these cases, if they can be supported at all, stand upon peculiar grounds of necessity, which can admit of no delay, and are no authorities for a doctrine so broad as that contended for by the plaintiff’s counsel. In the case of the husband and wife, before alluded to, the wife and child are not assumed to have the power to charge the husband and pai’ent with necessaries, unless there has been a clear and palpable neglect to provide them. But in the case before us nothing of that kind is shown ; not that we mean to say that the result would be changed if it were, but simply that the principle of those eases does not reach this.
It is said, also, that it was the duty of the town to furnish the relief in question, and from that the promise to pay will be implied. It is true that on application to the selectmen it is their duty to investigate the case, and, if the person be a pauper, and in need of relief, to furnish it; and if they willfully refuse they are liable to indictment. But we should hesitate to hold that third persons could revise their judgment, and charge the town for supplies they might think proper to furnish, trusting that a jury might find that the person ought to have been relieved.
It is urged also that the principle of Lee v. Deerfield, 3 N. H. 290, which gives effect to the request of one of the selectmen to relieve a poor person, in the absence of any evidence of assent or dissent by the others, will sustain this claim. In Lee v. Deerfield, 3 N. H. 290, the supplies were furnished a pauper whose settlement was in
The general drift of all those cases is, that no individual can recover of the town for supplies furnished a poor person, unless at the request of the town ; and although it is held in Lee v. Deerfield, that the request of one may be presumed to be the request of all, in the absence of any proof to the contrary, yet it is manifest, from the subsequent decisions, that the court was inclined to regard that as a case where the one overseer might be presumed to have authority to act for all. Had the overseers decided that the person ought to be relieved, as may well have been the case, then the act of one might have come within the principle of Glidden v. Unity ; namely, a merely formal act to carry out the decision of the board, and to which the assent of the others might properly be found by the jury, as, from the head note in Lee v. Deerfield, was probably intended by that decision.
Upon these views we think the instructions under consideration were erroneous, and of course this will also include the fifth paragraph of the instructions.
The testimony of Stickney and the plaintiff, taken together, tended to show that Page, one of the overseers, had authorized Mrs. Place to call in a physician, and that she had so informed the plaintiff, who acted upon it, and is not, as we perceive, objectionable, although, if the direction to Willey was never acted on, and had no other connection with the case but to show that Page was prepared to relieve the pauper, it would be objectionable.
Verdict set aside.