Board of Commissioners v. Brown

30 N.E. 925, 4 Ind. App. 288, 1892 Ind. App. LEXIS 111

• Court: Indiana Court of Appeals
• Decided: March 30, 1892
• Docket: No. 462
• Status: Published

Opinion

Reinthard, J.

This was an action by the appellee against the appellant for services performed in nursing and caring for Charles Brown, appellee’s brother, an alleged pauper resident of Tipton county, in his illness. The venue of the cause was changed to the court below. There was a trial by jury, resulting in a verdict and judgment for the appellee for $350.

Among other causes relied upon for a reversal of the judgment is the alleged insufficiency of the evidence to sustain the verdict. This cause was properly assigned in the appellant’s motion for a new trial, the overruling of which constitutes one of the specifications of error.

We think the evidence fairly tends to show that Charles Brown was a poor person and a resident of the township, the trustee of which, it is claimed, made the arrangement with the appellee upon which this action is based; that he was found lying by the side of a railroad track in a badly crippled condition, having been struck by a railroad train and severely injured; that by the direction of the railroad company’s physician, upon whose road he was injured, he was taken to the appellee’s house; that appellee is the brother of said Charles Brown, and has a family, and owns the farm upon which he resided; that he took said Charles Brown into his family without objection and without any contract or understanding of any kind with the township trustee or other person ; that he cared for said Charles in his family, and they nursed him and gave him such attention as be needed in his badly crippled condition; that said services were worth from $6 to $10 per day; that about a week after Charles had come to his house the appellee and his wife called upon the township trustee to ascertain what arrangements such trustee would make about pay for appellee’s services iu caring for his said brother. The trustee testified that he informed appellee he could not pay over $2.50 per week for such services, which appellee said he was not willing to take; that he, the trustee, invited the appellee to go to the county-seat with him to see the county commissioners in relation thereto; that, in pursuance of such invitation, they went to-the commissioners, who were then in session, but the evidence does not show what was the result of the interview. The appellee and his-wife testify that the trustee asked them if Charles could be moved; that they told him he could not. be; that the trustee then told them to continue to care for Charles the best they could, and the county would pay'appellee for it.

It thus appears that there was evidence from which the jury had a right to conclude that there was an arrangement between the appellee and the trustee by which the latter directed the former to care and provide for Charles Brown at the expense of the county. It is the duty of the township trustee, who is the overseer of the poor, to have the oversight and care of all poor persons in his township who are a. permanent charge. Section 6071, R. S. 1881. It is also the duty of such trustee to grant temporary relief to poor persons who have no permanent settlement, or when the same can not be ascertained, or to the transient poor. Sections 6077 and 6078, R. S. 1881. The nature and extent of such relief are necessarily left to a large extent within the sound discretion of-the trustee. Board, etc., v. Harlem, 108 Ind. 164. The fact that the poor person is- already being cared for when the trustee is informed of the case furnishes no reason for a failure on the part of the trustee to make arrangements for future relief if he regards such as necessary. Board, etc., v. Jennings, 104 Ind. 108.

The mere fact that Charles Brown was found in Madison county when first seen in the disabled condition in which he was discovered is ho reason why, after he had been transported into Tipton county in good faith, he should not be given assistance as a transient pauper. Besides, there was sufficient evidence from which the jury could well find that he had a permanent settlement in Tipton county and was without the necessary means to care for himself, and that it therefore devolved upon Tipton and not Madison county to furnish him relief.

It is argued that the cause ought to be reversed because it was shown that .the appellee was the brother of the indigent person whom he relieved and was financially able to care for him. We can not say, as a rule of law, that it is the duty of every man whose means admit of it to give relief to his afflicted brother in time of need and distress. We do think that these ties of kindred and the possession of at least a moderate competency furnish a strong presumption that when the. pauper and afflicted brother is voluntarily taken into the family and cared for the services are to be rendered gratuitously, but they are not conclusive evidence of such intention. It should be left to the jury, under all the facts and circumstances of the case, to determine whether the services were to be gratuitous or the county was to be looked to for compensation, and when there is positive proof of a contract with the township trustee that the pauper was to be cared for at the county expense, and the contract was within the powers of such trustee, this would be conclusive evidence to overcome any presumption arising from kinship and the like.

We think the evidence tends to support the verdict.

The court instructed the jury that the fact that the appellee was the brother of the injured party relieved “ furnished no reason or cause that he should care for him without compensation, any more than if he had been no relative. He stands upon the same basis as a stranger under the same circumstances.” Whether in view of the evidence this instruction presents the law correctly may well be doubted if we are correct in what has just been said with regard to the presumption that might properly exist in such a case where the contract or agreement of the overseer of the poor is in dispute. But as this question, though saved in the record, is not discussed in the brief of appellant’s counsel we must treat it as waived. The appellant’s counsel think it was error to permit the appellee and his wife to testify as to services rendered by Mrs. Brown and the value thereof. It is •argued that if Mrs. Brown rendered any services, and the county authorized them, the latter would be liable for such services to her individually, and not to her husband, the appellee. In this view of the law we think the appellant’s counsel are in error. The common law rule still prevails in Indiana to the extent that the earnings of the wife are the property of the husband, except in case where she carries on a separate business or works for others on her own account. Citizens Street R. W. Co. v. Twiname, 121 Ind. 375. Here the services were rendered as a part óf the household work in the appellee’s family, and they belong to the appellee.

The court overruled a motion for a continuance, and this ruling, it is insisted, was error. The affidavit upon which the application is predicated was made by James M. Fippen, an attorney of record for appellant. In it the affiant says he is a member of the law firm of Gifford and Fippen, of the city of Tipton; that his partner, George H. Gifford, is the regular legal adviser and attorney for the board of commissioners of the county of Tipton, and, as such, has the sole and exclusive charge and control of the legal business of the appellant; that this cause was commenced in Tipton county, but, by change of venue, came into the Clinton Circuit Court after a trial in Howard county; that during all the progress of said cause said Gifford was the sole attorney and had the exclusive control and management of this cause; that he is the only attorney at present familiar with the appellant’s defence, and the trial can not, in justice to said appellant, proceed in the absence of said Gifford; that affiant,while marked as an attorney of record in said cause and although he is a partner of said Gifford in the general practice, has no connection whatever or relation with said cause, and knows nothing of the merits of the same and of the defence to the action; that he has been dependent entirely and solely upon the said Gifford to prepare and make a defence in said cause; that affiant has no employment whatever by the appellant, and is under no obligation or responsibility for the management of the same, and has never given it any attention nor appeared in court therein; that he is reliably informed and believes that a few days before the setting of this cause for trial one Marcellus Bristow, an attorney of record in this cause, had in this court, while at the city of Tipton, Indiana, notified and informed said Gifford that this cause had not yet been set for trial, but that upon his return to Frankfort he would have the same set for trial, and would notify and inform Gifford of the date of the trial, in time for the latter to prepare the defence and have his witnesses summoned in time to be at the trial; “ but the said Brown failed and neglected to notify said Gifford of the date fixed by the court for the trial of this cause ”; that Gifford had no information or knowledge of the action of the court in setting said cause for trial until this morning at nine o’clock, when he was informed by telegraph, and also by telephone message from Samuel O. Bayless, a member of this bar, that the cause had been set for trial for this day, when he immediately requested said Bayless to notify the court of the arrangement and agreement between him and Bristow, attorney for plaintiff, and ask that the cause be postponed or continued a reasonable length of time to enable him to secure the attendance of appellant’s witnesses; affiant further says that said Gifford is now sick at his home in Tipton, Tipton county, Indiana, and unable to leave his home and enter upon the trial of the cause, and he files the certificate of said Gifford’s family physician in support of the affidavit; that it would at this time be impossible for the appellant to procure other counsel and give such counsel the facts and information necessary to make a suitable and proper defence in this action, there being no other attorney or person sufficiently acquainted with the facts save the said Gifford to make such defence; that the appellant is represented by three commissioners residing in different portions of the county of Tipton, and that it would require at least one or two days’ time to convene said commissioners so as to act in the matter of employing other counsel; that he is informed and believes the appellant has a good and meritorious defence to the action; that if the cause is postponed for a reasonable time, or continued until the next term, he believes Gifford will be able to attend and try said cause, but if not, then appellant will procure other counsel; that the affidavit is not made for delay, but in the interest of justice, etc.

It is apparent from this affidavit that two grounds are attempted to be set up therein, either of which is claimed as being sufficient for a continuance or postponement. One of them is the illness of Mr. Gifford, of counsel for appellant, and the other the failure of Bristow, the attorney for the appellee, to notify the said Gifford of the assignment of the cause to a day for trial in time to prepare the defence as he had agreed to do. It is not disclosed by the record when the action of the court was taken- setting the cause for trial. The court convened on Monday, the 2d day of March, and the day fixed for the trial was March 21. In the absence of any showing to the contrary, we must assume that the court gave ample time for preparation for trial. For aught that appears, the cause may have been assigned for trial on the second day of the term, the day set apart by statute for the first call of the docket. -Section 400, E. S. 1881. The law provides that the circuit judge shall arrange and regulate the order of business in court and provide for the trial of causes in certain order. Section 405, E. S. 1881. This contemplates an early arrangement of the docket, or calendar, and this court must presume that the circuit court performed its duty in every respect until the contrary is made to appear by the record. If then the court fixed a day for the trial in ample time to enable the parties to prepare for trial, it was the duty of counsel to ascertain and keep track of the condition of the cause and upon what day it stood for trial. The court can not be bound by the private arrangements of counsel among themselves as to sending each other notice of the time of trial. If so it would involve the court in interminable investigations in respect to the keeping of good faith with each other by the attorneys in every <5ase, and in cases where it was agreed that notice should be sent, the court would be required furthermore to determine the sufficiency of the notice and how long it must be served before the day of trial, etc. This would seriously interfere with the court’s arrangement of its docket, and would greatly retard the speedy disposition of its business. We think, therefore, that the court properly refused to take notice of the agreement alluded to in the affidavit. ■'

Whether the violation of such an agreement might or 'might not constitute good cause for setting aside a judgment by default for excusable neglect, as argued by counsel for appellant, is not now the question. We do hot think it is sufficient ground for a continuance under the fact's and circumstances set out in the affidavit in this case. The granting or refusing of applications for continuance are largely within the discretion of the trial court, and unless there is .an abuse of such discretion the denial of the application will not constitute a good cause for a reversal of the judgment.

Nor do we think the sickness of counsel was a sufficient ground for continuance. It is not stated in the affidavit how long Mr. Gifford had been sick, and, for aught we know, sufficient time may have elapsed for employing additional counsel or for giving Mr. Fippen, the partner of the absent attorney, ample instructions as to the defence and advising him in the premises. We do not think it is shown that the absence of the attorney, Gifford, prejudiced the appellant’s case. Whitehall v. Lane, 61 Ind. 93; Belck v. Belck, 97 Ind. 73; Moulder v. Kempf, 115 Ind. 459.

Filed March 30, 1892.

We have examined all the errors discussed and find none for which we feel authorized to reverse the judgment. While we have serious doubts as to the propriety of holding a county liable for services rendered under the circumstances disclosed in this case, we must adhere to the well-established rule that an appellate court in this State will reverse a cause only for some specified legal reason, properly presented by the record and discussed in the brief of appellant’s counsel. It was the duty of the court below to grant a new trial unless it was clearly satisfied that the result reached was just and proper, and having failed to do this, we must assume that the sanction it gave to the verdict was justified by the facts and circumstances of the case, of which it was in a. much better position to judge than we are.

Judgment affirmed.