Phelps v. Inhabitants of Westford

124 Mass. 286, 1878 Mass. LEXIS 296

• Court: Massachusetts Supreme Judicial Court
• Decided: March 5, 1878
• Status: Published

Opinion

Lord, J.

The plaintiff’s claim is founded upon the Gen. Sts. c. 70, § 16, which provide that “ every city and town shall be held to pay any expense necessarily incurred for the relief of a pauper therein by any person who is not liable by law for his support, after notice and request made to the overseers thereof, and until provision is made by them.”

The decision of this case turns upon the construction of that phrase of the statute, “ until provision is made by them.” Were these services rendered after notice, and before provision was made by the public authorities ?

The facts find that the first thing done after notice, assuming such notice to be sufficient, was this : The chairman of the overseers of the poor, on the day that he received the notice, made an arrangement with another physician to attend the pauper, and immediately thereafter on the same day called on the pauper, and told him of the arrangement, and that he could not provide him with the services of the plaintiff. The pauper said that “ he was then better, and did not need a physician; that, if he did, he would send by one of his children to the physician named by the overseer.” The overseer communicated this to the physician whom he had engaged, and he promised to attend the pauper, in case he was sent for. The court found as a fact that such physician would have attended him, if called for. The question is, Was provision made for the pauper ? A town is under no obligation to a pauper to provide for him a physician of his own choice. If it were, the remark of the pauper, when informed by the overseer that be could not employ the plaintiff,. “ that he did not. blame the overseer,” would have no tendency to show that the pauper especially desired the plaintiff’s services. Under the circumstances of the case, it is difficult to see what could be done by way of provision, which was not done. Assuming that by reason of age the pauper did not understand his own necessities, he was still surrounded by his family who would be presumed to understand his wants, as appears by his remark to the overseer, “ that, if he needed a physician, he would send by one of his children for the physician named by the overseer.”

The plaintiff knew of this arrangement; he knew a physician had been engaged ; he knew that physician was to be sent for if the pauper needed him. Certainly, with such knowledge, good faith required of the plaintiff at least a new notice to the town that the arrangement, which had been entered into by the overseer of the poor in the discharge of his duty, and in the belief that he had fully secured all proper relief to the pauper, had miscarried, and that the pauper was again in immediate need of relief. The services therefore having been rendered with full knowledge that other and proper relief had been provided by the officers of the town, the plaintiff must be considered to have performed the services voluntarily, and with no claim noon the town. Exceptions sustained.