150 Ky. 1 | Ky. Ct. App. | 1912
Lead Opinion
Opinion op the Court by
Reversing.
Dr. J. R. Scarborough was tbe health officer of Hickman County in October 1909; and had held such position
“On motion made, seconded and carried, ordered that the health officer of Hickman County be paid $1.50 for each call he may make and 50 cents per mile one way for the distance he shall travel over one mile in making-such call, and $2.00 for quarantining- and $2.00 for fumigating- smallpox, scarlet fever, diphtheria and other infectious disease and it is understood that Dr. J. E. Lee shall act in such capacity in the vicinity of Columbus. This to be effective until the April term, 1910, of this court. ’ ’
Conceiving- that his rights were fixed by' said order or resolution, Doctor Scarborough continued to discharge the duties of health officer of Hickman County. Sometime following- the April, 1910, term of said court, he presented to it his claim for services rendered the county, during- the six months covered by the order. On the advice of the county attorney, the fiscal court declined to pay. He thereafter instituted suit, in which he sought to recover of the.county $324.00, the value of the services alleged to have been rendered by him as health officer from October, 1909, to April, 1910. Several defenses were interposed for the fiscal court and the county by the county attorney, the chief of which was: That the health officer was not ordered or directed by the county board of health, or the State Board of Health, to render the service for which he sought to hold the county liable and that, in rendering- this service, he acted as a volunteer, on his own initiative, and the county was, in no wise, responsible therefor. In an amended petition, plaintiff pleaded that he rendered this service under the direction of the county board of health and the regulations of the State Board of Health. This amended petition was traversed. Another defense, interposed in behalf of the county, was that the persons, to whom this service was alleged to have been rendered, were financially able to pay the bills, and that therefore the county was not chargeable therewith. Upon the issues thus joined the case was submitted to a jury for trial, and it having returned a verdict in favor of plaintiff for the amount sued for, the county appeals.
The serious question presented by the record is: Bid the health officer act upon the direction of the county
“Q. Doctor I will ask you one other question: Tell the jury when you made these charges — when you gave this attention as health officer, how you come to do it?”
“A. In the beginning the fiscal court employed mo as health officer to do this work as per contract, I accepted it and as cases demanded through the county, we had no epidemic at all, that is, what we call an epidemic, we had sporadic cases, just here and there through the county, as eases were reported to me by the different doctors over the county, I attended those cases, carried out what we thought were the rules and regulations of the State Board of Health and of our board of health. ’ ’
“Q. Didn’t you go to Spring Hill, Columbus, and various parts of the county on notifications of these various doctors, wouldn’t you get in your buggy and go and the board of health didn’t know anything about it at all?”
“A. I told you that I didn’t go a single time by a direct order from the county board of health.”
“Q. I mean any kind of an order, didn’t you go without any kind of an order?”
“A. Never did but one time, that was by order of Judge Brummel, you remember thaT'time I met you over here.”
££Q. Did the county board have a meeting?”
<£A. No, we had several meetings, they knew what I was doing all the time, there was no special, direct order in any of these cases, there was no special, direct order from the county board of health, where we met and kept minutes, but we would meet, and not knowing, and not believing yet that minutes were absolutely necessary to be kept, it was absolutely impossible to have a meeting every time and the thing was to do it right now that the orders of the board of health might be carried out; you may take it for granted that in not one of these cases did we meet and Tiave these things ordered carried out, not in regular session where minutes were kept but we did meet. ’ ’
The chairman of the county board of health, Dr. W. W. Richmond, upon the same point testifies:
‘ ‘ Q. What direction or instruction did the local board of health of Hickman County give the health office^
“A. He was directed as health officer of Hickman County to look after all contagious diseases, infectious diseases, to quarantine and fumigate and to report the same to the local board here where in his opinion he deemed it necessary, that is the sum and substance of it.”
“Q. Tell the jury whether or not for the various items charged for here if the local board of health met and ordered Dr. Scarborough to go out and quarantine and fumigate these cases?”
“A. Not specifically, not individually, the law don’t require that.”
Dr. E. B. McMorries, a member of the county board of health, says upon this point:
“Q. During that time that you was a member of that board of health in connection with the chairman, Dr. Richmond and Dr. Scarborough, if you gave any direction with reference to the treatment of these contagious diseases, you may tell the jury what it was?”
“A. We would occasionally meet on the street, the three of us, and Dr. Scarborough would report his action in regard to quarantining these cases and where they were located, sometimes, most all the time I think, but as far as any minutes being kept of the meetings, I don’t think there were any.”
“Q. Tell the jury whether or not you all met and ordered a quarantine and fumigation of various people on this account of Dr. Scarborough’s and ordered him to go do this work?”
“A. I can’t say that we did specifically, but we gave him a general order and it was understood that he was to do this.”
Thus, the uncontradicted evidence of appellee himself, as well as that of the chairman and another member of the county board of health, shows that a blanket instruction had been given appellee, to look after the sanitary and health conditions of the county and to take such steps as, in his judgment, were necessary to prevent the spread of contagious and infectious diseases. The record does not show just when this blanket instruction was given. There is no evidence that the record, kept by the county board, shows that such an instruction was given; but, it is unnecessary that there should be a record to this effect. If, in fact, the county board passed such
“It is to the county board of health, not to the health officer, their creature and executive, that is committed the duty of examining into those nuisances and conditions of filth and infection that tend to spread the contagious diseases, to establish quarantines, and to bring the population of an infected or suspected community into proscribed treatment and disinfection. This power is given by the statute to the board, and it must act as a board on, each case or epidemic as it arises; determining the necessities of each situation from the facts then existing.”
The proof .shows there was no attempt made by the, health officer to procure the consent, or even the advice, of the county board of health before acting. On the contrary, it is apparent that the county board was leaving to the health officer the discharge of the duties, which the law imposed upon it; that, in all that he did, he acted, not upon the judgment -of the county board of health, but upon his own judgment; and, as the county could only be bound so,as to require it to pay for his services when he was carrying out the order or direction of the county board, it was incumbent upon appellee to show that the services, for which he was seeking compensation, were rendered in conformity to the requirements of the statute, as construed by this court in Taylor v. Adair County, supra. This, he failed to do; but, on the contrary, shows that none of the service was rendered while so acting.
The court should have, upon this showing, directed a verdict for appellant, and for its failure so to do, the judgment is reversed and cause remanded for further
Dissenting Opinion
Dissenting Opinion by
Section 2055 of the Kentucky Statutes, as it existed prior to March 18, 1904, required the State Board of Health to appoint three discreet citizens, residents of each county in the State to constitute a local, or county board of health, and empowered and required the county board to inaugurate and execute sanitary measures. The section did not require that the county board be composed of physicians. It also required that this board be paid for such services as it rendered; and closed with the following language:
“The local board shall appoint a competent physician, who shall be the health officer of the county, and shall hold his office for two years, and until his successor is appointed. ’ ’
It will thus be seen that no special duty was required at the hands of this health officer; his only duties were to act when the local board employed and directed him to aid them in inaugurating and executing the rules and orders made by the board of Health.
The opinion in the case of Taylor v. Adair County, 27 Ky., L. R. 36, which is referred to in the opinion,) was rendered January 4, 1905, but the services sued for in that action were rendered prior to March 18, 1904, the date upon which the section of the statute was amended, therefore, that opinion was controlled by the section as it existed prior to March 18, 1904, but this case must be governed by that section as amended March 18, 1904, and it was amended on this date in several particulars; one of them being instead of providing, as the old statute did, that the State board should appoint three or more intelligent and discreet citizens in each county to constitute the local board, it provides that the State Board of Health shall appoint three intelligent and discreet licensed and practicing physicians residing in each county, who, together with the county judge and one person selected by the fiscal court of each county, shall constitute the local board of health. Again, instead of stipulating, as did'the section previous to its amendment, that the local board shall receive such compensation for services as the county court in its discretion may allow, it
“The local board shall appoint a competent practicing physician who shall be the health officer of the county and secretary of the board, whose duties it shall be .to see that the rules and regulations provided for in this act, and the rules and regulations of the State Board of Health are enforced, and who shall hold his office at the pleasure of said board, and he shall receive a salary, the amount of which to be fixed by the fiscal court at the time, or immediately after his election. In no state of case shall said health officer claim or receive from the county any compensation for his services other than the salary fixed by the fiscal court. ’ ’
This amendment requires the health officer of the county to see that the rules and regulations provided in this act and the rules and regulations of the State Board of Health, are enforced. It does not say that the rules and regulations provided for by the county board of health shall be enforced, but suppose it does mean that the county board should establish rules and regulations; it fails to provide when it shall be done or in what manner. Further, there is nothing in the section indicating that the members of the county board of health are expected to assemble each time there is reported an infectious disease or emergency, and it is highly probable that such a requirement would be destructive of the section. The five persons who constitute the board should be intelligent business and professional men, therefore, will be men engaged in some fruitful vocations, and it does not seem reasonable that they should be required to leave their homes and businesses and assemble at some place in the county each time an infectious disease or an emergency of any kind is reported, for the statute expressly provides that they shall receive no compensation. It seems to me that if the local board meets at the beginning of its health officer’s term of office and enacts rules and regulations governing his conduct, the statute is complied with.
The opinion holds that before the health officer can execute the rules and regulations of the State Board of Health, the local board must assemble and order him to do so. If this be so, of what use is the language and
A considerable portion of appellee’s claim was for services rendered in carrying out orders of the State Board of Health, as the testimony shows.
Under the old statute the health officer of a county was a creature of the county board of health and his sole power to act was derived from that board, hence the apparent reasonableness of the construction in the opinion of Taylor v. Adair County, supra; but under the statute as amended the health officer’s powers are specifically delegated by the G-eneral Assembly. The act says that it is his duty to see that its provisions are carried oui< and that the rules and regulations of the State Board; of Health are enforced, therefore, the opinion in the case referred to has no application.
Prom these reasons, I dissent from the opinion rendered herein.