60 Mass. 399 | Mass. | 1850
This action is brought on the Rev. Sts. c. 46, § 18, which provide that “ every town shall be held to pay any expense which shall be necessarily incurred for the support of a pauper by any person who is not liable by law for his support, after notice and request made to the overseers of the said town, and until provision shall be made by them.” The defendants do not deny, and we do not doubt, that the words “ expense incurred,” as used in «this section, include such personal attendance on a pauper, and labor done for him, as are necessary for his support or relief. But a town is not held to pay for support and relief furnished to a pauper by private individuals, unless it has first had an opportunity to support and relieve him, under the oversight and direction of its officers appointed to that duty. The statute encourages a private individual to afford immediate relief to poor persons in distress, by giving him an action for indemnity against the town, provided the overseers of the poor, on notice and request by him, omit to furnish the relief. But this notice and request are conditions precedent to the liability of the town. And the request must be as explicit as the notice. It must be an intelligible call on the overseers to take charge of the pauper, at the expense of the town. See Smith v. Inhabitants of Colerain, 9 Met. 492; and Walker v. Inhabitants of Southbridge, 4 Cush. 199.
In the present case, the plaintiff was in the family of her son-in-law, nursing her daughter, before the smallpox reduced the family to such distress as required relief and support from the town. She remained in the family, after such relief and support became necessary, and rendered assistance, as nurse and housekeeper, for several weeks, and afterwards requested another person (in the words of the exceptions) “ to call on the overseers of the poor for more help, or a person to take care of said paupers, instead of herself, for she could not stand it any longer.” There was evidence tending to show that this person made such call on the overseers, in her behalf; but with no effect. And the question is, whether this notice and request were such as entitle her, under the statute, to recover for her services afterwards rendered to the family.
As to the notice and request by the plaintiff herself, the judge left it to the jury, as a question of fact, whether the plaintiff intended, by her message to the overseers, that she should thereafter render her services upon the credit of the town, or whether she meant only that the family needed further assistance, in addition to what she could render, intending still to furnish her own labor without compensation.
We are of opinion that the plaintiff has no legal ground of exception to the course taken by the judge. The notice and request, under the circumstances of the case, were not clear and explicit. They did not necessarily import an intention to call on the town to pay for her services subsequently rendered. They were consistent with an intention to continue her labors gratuitously, to the extent of her ability, though she pressed for assistance. And the judge, instead of ruling, (as we are inclined to think he properly might,) that the notice and request were insufficient to give the plaintiff a right of action, referred it to the jury to decide what the plaintiff’s meaning was, at the time. This was as favorable to the plaintiff as the law would possibly justify. And the jury have found that she continued, after said notice and request, to work in the family as before, intending that her services should be gratuitous.
Exceptions overruled.