61 Ind. App. 230 | Ind. Ct. App. | 1916
Suit by appellee against appellant to recover for certain professional services rendered and for medicines furnished in treating certain persons afflicted with smallpox in the town of New Carlisle, in pursuance of an alleged contract with appellant. Issues were formed on a complaint in one paragraph and an answer in five paragraphs. From a judgment in favor of appellee for $362.22, appellant has appealed. The errors assigned and relied on for reversal are (1) the overruling of appellant’s demurrer to the complaint; (2) overruling appellant’s motion for judgment on the answers of the jury to the interrogatories; (3) overruling the motion for a new trial.
The complaint in substance shows that in February, 1907, the trustees of the town of New Carlisle, constituted ex officio the board of health of said town; that on said day certain occupants of a hotel in said town were stricken with smallpox,'a dangerous and communicable disease; that on that day the town board of health employed appellee, who was a duly licensed and practicing physician of St. Joseph County, Indiana, to take-charge of said afflicted persons and render them such medical services as were necessary; that in pursuance of such employment, appellee rendered the necessary services and furnished medicine, all of the value of $523.70, an itemized account of which was filed with the complaint showing the services rendered from March 1 to March 28,1907, inclusive; that appellee presented an itemized account of his bill to appellant and demanded paymenf; which was refused. The complaint was answered by a general denial; a plea of payment; a plea of compromise, settlement and tender of $50; also by an amended fourth paragraph in which it was averred in substance that, on February 28, 1907, appellant appointed appellee as its health officer at a salary of $15 per year; that he then accepted the appoint
In answer to interrogatories, the jury found the facts substantially as alleged in the fourth and fifth paragraphs of the answer. The answers also show that appellee knew when he accepted the appointment as health officer that he, as such officer, was to care for and doctor persons in said town afflicted with contagious diseases; that appellant agreed to pay appellee for services rendered in doctoring smallpox patients of said town during the month of March, 1907, more than the $15 paid its health officer, but made no record of such employment, which was made by one of its members, a Mr. Davis.
Appellee contends that he was first employed as a physician to treat the smallpox patients and that later in the same day he was appointed to and accepted the position of health officer of the town. Appellant contends that there was no employment of appellee by the board to treat the patients and that at most there was only some talk by the individual members of the town board on the street when the board was not in session. It is not, however, denied that appellee held the position of health officer during the month of March when all the services for which he seeks to recover
The services for which a recovery was allowed in this case continued throughout the month of March. Appellee’s duties as health officer were continuous throughout that time. The determination of the necessity for the continuation of the services at the expense of the municipality during that time was a question that devolved upon him in his official capacity, whether he acted honestly and in good faith is not material to the question under consideration. The question depends not upon what was actually done under the contract but upon what was made possible thereby. Recovery for such continued services can not be sustained on the ground of emergency. Cases dealing with emergency have been duly considered but are not of controlling weight here, though they have application to many situations which arise in relation to public health. The principle of public policy is involved and we, therefore, hold that the alleged contract under' which the services were rendered is void if entered into after appellee accepted the position of health officer and that, if entered into before he became such health officer and the services were rendered while he was such officer, the contract was thereby rendered invalid and its enforcement would be against public policy. Whether the contract was entered into shortly before, at the time, or after appellee’s appointment as secretary of the board of health, is not material, for it is not disputed that he rendered the services while acting in his official capacity as health officer. As supporting our conclusion we
The judgment is reversed with instructions to the lower court to sustain appellant’s motion for judgment in jits favor on the answers of the jury to the interrogatories.
Note. — Reported in. 110 N. E. 1001. As to liability of municipality under executed contract in which municipal officer is interested, see Ann. Cas. 1912 D. 1132. See, also, under (1) 4 C. J. 450; 3 Cyc 108; (2) 3 C. J. 1407; 2 Cyc 1013; (3) 28 Cyc 480; (4) 28 Cyc 650; (5) 9 Cyc 485; 29 Cyc 1435.