Lacy v. County of Kossuth

75 N.W. 689, 106 Iowa 16

• Court: Supreme Court of Iowa
• Decided: May 25, 1898
• Status: Published

Opinion

Deemer, C. J.

1 The acts of the legislature material to a determination of the main questions in the case are as follows: “When any person * * * residing within any * * * township within this state shall be infected * * * with * * * sickness dangerous to the public health, the board of health of the * * * township where said persons may be, shall make effectual provisions in the manner in which they shall judge'best, for the safety of the inhabitants, * * * by providing nurses and other assistance and supplies, which shall be charged to the person himself, his parents or other person who may be liable for his support if able; otherwise at the expense of the county to which he belongs.” Acts Eighteenth General Assembly, chapter .151, section 21. Section 14 of the same chapter also provides that “every local hoard of health shall appoint a competent physician of the board, who shall be the health officer within its jurisdiction;” also, “that local boards shall also regulate all fees and charges employed by them in the execution of the health laws, and of their own regulations.” Section 303 of the Code of 1873 vests in the board of supervisors of the respective counties the “exercise of all the powers in relation to the poor given by law to the county authorities.” Section 1361 of the Code of 1873, as amended by chapter 133, Acts Eighteenth General Assembly, provides that “the township trustees shall provide for the relief of such poor persons in their respective townships as should not in their judgment be sent to the county poor house. * * * The relief thus furnished may be in the form of * * 'x' medical attendance.” Section 1363: “All moneys expended (as contemplated in section 1361) shall be paid out of the county treasury after the.proper account rendered thereof shall have been approved by the board of supervisors. * * * But the board * * * may limit the amount of relief thus to be furnished.” Section 1365, as amended by Acts Twenty-second General Assembly, chapter 101, so far as material, is as follows: “The poor must make application for relief to the township trustees, * 'x' 'x‘ and if the trustees are satisfied that the applicant is in such a state of want as requires relief at the public expense, they may afford such relief, subject to the approval of the board of supervisors, as the necessities of the person require. * * * The board * * * may examine into all claims * * * for medical attendance allowed by the * * * trustee, * * * and if they find the amount allowed 'x‘ * * unreasonable or exhorbitant * * * they may reject or diminish the claim as in their judgment would be right and just. * * *” Section 1366: “All claims and bills for tbe support of the poor shall be certified to be correct by the proper trustees and presented to the board of supervisors, and if they are satisfied that they are reasonable and proper they aré to be paid out of the county-treasury.” Section 1369 provides that “the board of supervisors may enter into contract with the lowest bidder * * * for the support of all the poor of the county for one year at a time. * * *”

2 3 We have held that the board of supervisors has authority under these sections to employ a competent physician to-attend to all the poor of the county, and that the township trustees cannot disregard such employment and engage other physicians to render such service at the expense of the county. Mansfield v. Sac County, 59 Iowa, 694; Gawley v. Jones County, 60 Iowa, 159. To the first count of plaintiff’s petition, which was for services rendered at the instance of the board of health to a pauper sick wit-ha contagious disease, defendant filed answer, in which it pleaded that the local board of health had in its employ one Dr. Armstrong, who was the health officer of the hoard, and that said board had no authority to employ another physician. It also pleaded that it had employed a qualified physician -to attend to all the poor persons of the county, who was willing and able to perform the services for which plaintiff seeks compensation, and that neither the board of health nor any one for the patient requested the attendance-of the county physician. A, demurrer to each of these pleas-was sustained, and the error assigned upon this ruling presents the first question for our consideration. The law provides, as we have seen, that each local board shall appoint a competent physician who shall be the health officer within its-jurisdiction. By such appointment he becomes simply an officer to assist in the administration of the law and the-enforcement of the regulations of the board. As such, he is-not required to treat the sick in his professional capacity. Whatever the board deems best for the safety of the inhabitants, in the matter of assistance and supplies, they may ■order, under the provisions of the Acts of the Twenty-second General Assembly, before quoted; and compensation for such service is to be had under the provisions of that enactment. The health officer could not be compelled to render assistance to infected persons simply because he was appointed physician to the board. As plaintiff was called to the service by the board of health to treat an infected person, he is entitled to his compensation, although the county may have had a contract with a physician by which such physician undertook to treat all the paupers of the county. The fact that the patient is a pauper is material to the inquiry as to who shall pay the bill, and not to who shall perform the service. The demurrer was properly sustained. As sustaining our conclusions, see Village of St. Johns v. Board of Sup’rs of Clinton County, 111 Mich. 609 (10 N. W. Rep. 131); City of Clinton v. Clinton County, 61 Iowa, 205.

4 II. Plaintiff did notplead the inabilityto pay of any other relative that the father of the patient, and appellant insists that the petition does not state a cause of action. It relies upon the statute before quoted, and the case of Tweedy v. Fremont County, 99 Iowa, 121. That the petition was demurrable must be conceded; and it may be, although we do not decide the point, that the question might have been made in answer. A motion in arrest of judgment might also have been based upon the plaintiff’s failure to state a cause of action. But the point was not raised in any such manner. There is no reference in any of the proceedings to this defect. True it is that defendant moved that the court direct a verdict for defendant as to the first count of the petition, for the reason that there was no evidence that the parents and grandparents of the person for whom the services were rendered were not able to pay, which motion was overruled. But this did not go to the defect in the pleading. It is also true that defendant objected to the evidence offered by plaintiff as to the financial condition of the parents and grandparents ; and it further appears that the court instructed that the jury must find that neither the parents nor the grandparents of the patient were able to pay. In view of the state-of the pleadings, the rulings excepted to were, no doubt erroneous; but the error was without prejudice to the appellant. The effect was to cast an unnecessary burden upon the appellee. These instructions, which were not excepted to by appellee, constituted the law of the case; and it was the duty of the jury to follow them, whether right or wrong. It may he there was not sufficient evidence to justify the finding as to the responsibility of the grandparents; but this question was not presented to the trial court. No motion for a new trial was filed. Appellant did nothing after verdict but except to some of the instructions. Appellant argues, 1 wever that it was not bound to present the question of the sufiAiency of the pleading to the trial court, and it relies upon chapter 96 of the Acts of the Twenty-fifth General Assembly. We need not set out this statute. It is sufficient to say that we have-frequently held that the insufficiency of the pleading cannot be presented for the first time in this court. See Boyd v. Watson, 101 Iowa, 214; Weis v. Morris, 102 Iowa, 327; Reed v. City of Muscatine, 104 Iowa, 183. The case of Weis v. Morris is decisive of the question here presented. There was no error of which appellant may complain.

III. Appellant contends that there is no evidence that appellee was authorized to practice his profession in this-state. The evidence shows that appellee is a physician and surgeon; that he is a graduate of a medical college, and has. practiced his profession in Kossuth county for over eleven years. The rule seems to be that when the question of license arises collaterally in a civil action between the physician and one who employs him, due qualification under the statute-will be presumed, and the burden is upon him who denies such license. Brown v. Young, 2 B. Mon. 26; City of Chicago v. Wood, 24 Ill. App. 42; Thompson v. Sayre, 1 Denio, 175. In case of public prosecution the rule is the other way.

6 IV. To prove the inability of the father of the patient to pay the bill, appellee was permitted to introduce in evidence the testimony of several parties who had made investigation and inquiries in regard to the amount of property owned by him; and, after narrating these facts, they were allowed to state whether a bill could be collected by execution or otherwise. Other witnesses who stated they had made investigation were permitted to testify that he had no property out of which the plaintiff’s bill could be collected. The objection was that it was hearsay and an opinion based on hearsay, not the best evidence, and no foundation laid for secondary evidence. The objection was properly overruled. Hard v. Brown, 18 Vt. 87; Sherman v. Blodgett, 28 Vt. 149; Crawford v. Andrews, 6 Ga. 244. We have held, in the case of Hall v. Ballou, 58 Iowa, 585, that a witness could not state whether another person was solvent or insolvent. But it appears that the witness in that case did not know of the financial condition of the person inquired about, “except by general reputation.” See, also, Fairchild v. Case, 24 Wend. 381. Some of the evidence offered to show the financial responsibility of the mother and grand parents was perhaps incompetent, under the rule stated in the Hall Case. See, however,Nininger v. Knox, 8 Minn. 140 (Gil. 110). But, as we have already said, the error, if any, was without prejudice.

7 Y. A certificate of the board of health, attached to appellee’s statement of account which was presented to.the board of supervisors, stating that plaintiff was employed by the board, that he performed the services stated, and that the bill was correct and in accord with the contract made with him, and that the father of the patient was not responsible, was offered in evidence, together with the statement of account. That part of this certificate referring to the responsibility of the father and to the contract price of the work was rejected; the'remainder of it was received. In this there was no error. The certificate was properly attached to the bill and presented to the board. When so attached, it became a part of the claim, and, as such, was admissible in evidence. See Tweedy v. Fremont County, supra

S 9 VI. We have now disposed of all the controlling assignments of error relating to the first count of the petition, and we turn our attention to the second, which is for medical services rendered a poor person under employment by the township trustees. It is conceded by appellee that, as the board of supervisors had employed a physician to furnish medicine and medical aid to all poor persons in the county, he cannot recover unless he shows that'the person so employed was incompetent or inconvenient of access. The county entered into a contract with one Dr. McCormack to care for the poor during the year in which plaintiff performed his services. And plaintiff attempted to prove, not only that he was incompetent, but that he was so located as to be inconvenient to the poor of the township in which the patient treated by plaintiff resided. The argument presents but two questions relating to this matter: First, the correctness of the instructions; and, second, the rulings on the admission and rejection of evidence. No motion for-a new trial was filed, and the sufficiency of the evidence is not presented. The exceptions to the instructions were in writing, filed on the same day they were given, but not at the time they were read, as we understand the record. These grounds of exception were: First, that said charge was not authorized by law; and, second, that it “includes trustees, nurses, and others interested therein.” These ground are entirely too general, and the objections now urged in argument cannot be considered. Patterson v. Railway Co., 70 Iowa, 593; Benson v. Lundy, 52 Iowa, 265; Price v. Railroad Co., 42 Iowa, 16.

10 VII. To prove the incompetency of McCormack, appellee introduced evidence as to his immoderate use of liquors, how he stood in the profession, his neglect of patients, and particularly of pauper patients; and one witness was permitted to testify as to his reputation for neglecting cases and incompetency in general. This witness did not pretend to know anything of his capacity except a rumor that he neglected his cases and was incompetent. Another was permitted to state that his standing with the medical profession was not good. And still others gave evidence as to a particular instance of neglect. All this evidence was objected to, and allowed over defendant’s objection. When the character or competency of a person is directly in issue, it is no doubt true that one familiar with his character or ability may give evidence of the fact; and it is also a general rule that evidence of character must be confined to general reputation, and that particular acts or specific facts are not admissible. Forshee v. Abrams, 2 Iowa, 511; Frazier v. Railroad Co., 38 Pa. St. 104; Utley v. Merrick, 11 Metc. (Mass.) 302. This must also be the rule as to competency. Surely, the court cannot try collaterally each and every case tending to show the ability or competency of the person whose skill is the subject of inquiry. Again, before one is permitted to speak as to the character or reputation of another, knowledge must appear. The mere individual opinion of the witness is not admissible. No one will be permitted to speak affirmatively to the character or competency of another as distinguished from general reputation solely from rumors or reports. Haley v. State, 63 Ala. 83. Applying these well-settled rules to the case at bar, it will be seen that much incompetent evidence as to the competency of Dr. McCormack was admitted. The particular case inquired about happened some five years prior to the time plaintiff was called upon to perform his services, and the evidence- shows that the fault was neglect or inattention. Surely, the defendant could not be expected to meet any such evidence. Moreover, if such evidence was competent, then it was proper for the parties to introduce evidence regarding each and every case treated by Dr. McCormack since he commenced the practice of his profession. We do not overlook the fact that the evidence shows that one of the trustees who employed the plaintiff had knowledge of the treatment in this particular case, but this circumstance is no justification for the evidence. The belief of the trustee is not the test. The fact only was material to the inquiry. If the board in fact employed a competent and convenient physician to care for the poor, the trustees were not authorized to employ another simply because they believed tbe county physician was inattentive, neglectful, or incompetent.

11 VIII. A certificate from the township trustees attached to the account presented to the board of supervisors was admitted in evidence. That it was properly received, see the authorities cited in the fifth paragraph of this- opinion, and Mussel v. Tama County, 13 Iowa, 101.

IX. We see no error in the cross-examination of Dr. McCormack, of which defendant may justly complain.

12 X.The fact-that Dr. McCormack was employed by the county to furnish medical aid was admitted, and it was not error to exclude the contract itself.

Nor the errors pointed out, the judgment of the district COUrt ÍS REVERSED.