Gaston v. Board of Commissioners

3 Ind. 497

• Court: Indiana Supreme Court
• Decided: November 26, 1852
• Status: Published

Opinion

Perkins, J.

Dr. Gaston sued the commissioners of Marion county for services rendered in a post mortem examination of the body of a deceased person, which examination was made upon the call of the coroner of the county. Judgment for the defendant in the Circuit Court.

The case was submitted and decided upon the following agreement as to the facts:

“ It is agreed that an inquest was held over the body of James Smither on the 14th of March, 1849, in the county of Marion, by Peter Newlancl, as the coroner of said county; and that he is the coroner of said county; that for the purpose of enabling the jury to determine by what means the said James Smither (who it was supposed came to his death by poisoning) came to his death, it was necessary to have a post mortem examination of the body of said Smither, who had been dead and buried eight days; that the plaintiff was subpoenaed by said coroner for that purpose, and, failing to attend upon said subpoena, an attachment was issued for said plaintiff, who was accordingly attached and brought thereunder to Pike township, in said county, where said 'inquest was held; and there, under the direction of said coroner, made, with the assistance of others, the post mortem examination of said James Smither, deceased, and was there sworn as a witness in the'case, and testified to said jury as a witness, and communicated to them the result of that examination, and his opinion of the means by which said Smither came to his death;” that the examination was fourteen miles from the residence and office of said Gaston, and occupied the space of two hours; that said Gaston had, previously to commencing this suit, filed his claim for compensation with the county commissioners who had rejected it, and no appeal had been taken; that at the time said Gaston made said examination he was one of the physicians employed by the county, at a given salary, to attend upon all county paupers; that if he is entitled to recover at all in this case, the judgment shall be for 25 dollars.

This agreement is signed by Ketcham and Taylor for the plaintiff, and R. L. Walpole for the defendants.

The service rendered in this case by Dr. Gaston was not covered by his employment to attend upon the county poor, file was entitled to no compensation for that service so far as the traveling and giving testimony in obedience to the subpoena were concerned, beyond that of an ordinary witness. Physicians are not specially privileged in this particular. But the expenditure of labor and skill in the post mortem examination created a claim to additional compensation from some source. Either the coroner who procured the service, or the county, should pay for it.

We have no doubt that in a case where a post mortem examination is really necessary the coroner may, by his employment, bind the county to the payment for a sufficiency of professional skill to make the examination. To that extent, at least, he must be the agent of the county

(1).

But whether the employment of the plaintiff in the present case was such as to entitle him to compensation from the county or not, we have not to determine. The agreement upon which the cause was submitted states that said plaintiff had, before the commencement of this suit, presented his claim for his service in said post mortem examination, in company with the claims of two-other physicians, to the board of commissioners of Marion county, before whom it was docketed, heard, and decided against said plaintiff', all of which appears of record, and that no appeal had been taken from that decision.

That judgment of the commissioners bars this suit. The commissioners were a Court having jurisdiction of the cause; it was brought before them in the manner pointed out by the statute, and their judgment, while unreversed, is conclusive. See the case of The State v. Conner, 5 Blackf. 325. It is not material that the claim was not brought before said commissioners in the manner of a formal suit at law. It was not necessary to give the commissioners jurisdiction that it should be so brought. See Hart v. The Board of Commissioners of Vigo county, 1 Carter’s Ind. R. 309. And section 23, R. S. p. 184.

J. L. Ketcham and N. B. Taylor, for the plaintiff. R. L. Walpole, for the defendants.

Per Curiam.

The judgment is affirmed, with costs.

See Alleghany County v. Watt, 3 Penn. State R. 462.