31 Ind. App. 269 | Ind. Ct. App. | 1903
On September 23, 1901, one Smith, having no means or property whatever, came to appellant’s home) in. a thickly populated part of the city; afflicted with smallpox of a malignant character. Dr. Horne had previously been appointed secretary of the board of health for the county and for appellee, and a few days prior to the above date gave Dr. Spaulding, a duly qualified practicing physician, written authority to act as such health officer during Dr. Horne’s absence, after which Dr. Horne absented himself from the city and county and never afterward acted or assumed to act as such health officer. Erom the time of such appointment, and for forty days continuously thereafter, neither the county nor city had any health officer other than Dr. Spaulding, the city and mayor failing to make any appointment and to provide any pest-house. On the above date, Dr. Spaulding, acting under this appointment, and also verbal directions of the secretary of the state board of health directing him immediately to quarantine the house to prevent the spread of the disease and protect the health of the citizens, quarantined the house and placed guards around the same to prevent either ingress or egress, and ordered and contracted with appellant to take charge of Smith and nurse and care for him, and agreed that appellee should pay appellant, who was in indigent circumstances, therefor. Appellant believed at the time that Dr. Spaulding was the health officer of the city, and under the agreement with him she nursed and cared for Smith twenty-two days, worth a certain sum per day. During the twenty-two days her house was quarantined and guarded she was not permitted to leave the premises and no one was permitted to enter. The city paid the guards Dr. Spaulding contracted with for guarding the house.
Error is assigned upon sustaining a demurrer to a complaint averring substantially the above facts.
It is true the secretary, of the board of health does not have absolute authority independently of the board in matters pertaining to the public health, and we approve the doctrine announced in Board, etc., v. Fertich, 18 Ind. App. 1, and Martin v. Board, etc., 27 Ind. App. 98, cited by counsel for appellee, but they are clearly distinguishable from the case at bar. Those opinions expressly indicate that circumstances' might exist that would require a different holding. In Board, etc., v. Fertich, supra, it was held that the purpose of this statute is to protect the public health and “In carrying such purpose into effect according to the meaning of the statute, it might become the duty of the county, under particular circumstances, to supply medical service, medicines, nurses, shelter, fuel, food, and raiment for patients taken for the time being under the control of the board, and placed in such situation that such provision would be a necessary part of the protection of the public' health. We do not mean to indicate what would be the
Even if it be conceded that under a. strict and literal interpretation of the law appellant could not recover, yet, as said by the court in Board, etc., v. Cole, 9 Ind. App. 474, “Courts are not, however, always required to give full force to the exact letter of the law, but are oftentimes permitted, nay, more, required, to relax somewhat the rigor of an exact compliance. Schmidt v. State, 78 Ind. 41; City of Evansville v. Summers, 108 Ind. 189.”
In Board, etc., v. Cole, supra, a physician recovered for services rendered in a county where he had not procured license to practice, the services having been rendered under a pressing emergency and urgent necessity that would not admit of delay. See Orr v. Meek, 111 Ind. 40; Lamar v. Board, etc., 4 Ind. App. 191.
It is true that the general rule is well established that a person dealing with the agent of a municipality must take notice of the limit of his powers and must know whether the authority assumed is within" the statute. But it must be conceded that the facts pleaded show an emergency existed requiring immediate action. A person afflicted with smallpox of a malignant character was discovered in a populous part of the city. Immediate action to prevent the spread of the disease was required. The officer charged with this duty was absent and had been for some days. The statute does not contemplate that a city shall be without a health officer, but provides that when there is a vacancy the place shall be filled immediately by the president of the board of trustees or mayor of the city. Dr. Spaulding was qualified to act as health officer, and, acting upon the authority given him by the regularly appointed health officer
Moreover, the city was without a regularly appointed health officer who could act when the emergency arose. The public at large, and especially the inhabitants of appellee city, were vitally interested in having precautionary measures against the spread of the disease taken immediately. Appellant and her premises were properly quarantined, and by one assuming to have authority to act. He did nothing that appellee itself might not have done (Board, etc., v. Bader, 20 Ind. App. 339), but did only what the city in the proper exercise of its duty under the circumstances was required to do. We think that when all the facts and circumstances are taken into consideration, the emergency that existed, the purpose for which the services were performed, the object sought to be accomplished, the necessity that existed that the services be performed, the law implies a promise to pay the reasonable value of appellant’s services. See City of Logansport v. Dykeman, 116 Ind. 15.
Judgment reversed.
