28 N.H. 9 | Superior Court of New Hampshire | 1853
It is provided by chapter 120, section 1 of the Revised Statutes, that any town may appoint an agent for vaccination, who may vaccinate all persons at the expense of the town, who have not had the small pox, and shall receive a suitable compensation therefor, to be paid by the selectmen.
The family of Ham were not paupers, and the town was under no obligation to provide general medical attendance for them. Whatever the selectmen did was in their official capacity, and as the town was not liable, the selectmen could not, by their undertaking, make them so. For the general medical services, therefore, rendered by the plaintiff to the family of Ham, the town is not liable.
But fhe plaintiff is entitled to recover of the town for his professional services in vaccinating the family of Ham. The statute does not go upon the ground that the persons who are ill with the small pox must be paupers. After the interview between the plaintiff and the selectmen, the former may be regarded as the agent of the town, for the purpose of vaccinating such persons as might require it, and may recover a reasonable compensation for that service. But he cannot recover under the count in the writ, for vaccination is neither under the head of “visits” nor of “medicine.”
It does not appear what would be a reasonable competísation for vaccinating these persons. The case gives us no information on that point, and for the purpose of having the matter inquired into by the jury, the case should be discharged, and a new trial had.
Verdict set aside.
