
    ROANE, Respondent, v. HUTCHINSON COUNTY, Appellant.
    (167 N. W. 168.)
    (File No. 4233.
    Opinion filed April 2, 1918.)
    1. Paupers — Relief of — Voluntary Medical Services, Liability of County Por — Non-statutory Liability — Statute, Absence of
    The obligation of a county to furnish care and relief for poor and indigent persons found within such county is purely statutory; and there is no statute law in this state authorizing payment by county for services voluntarily rendered by any one in caring for such poor, in absence of express or implied contract made as provided by law with proper county officers, obligating county to pay therefor.
    2. Paupers — Injury to in Freight Car Accident — Liability of Adjoining’ County .for Medical Services to — Statutory Liability— Complaint, Sufficiency.
    A com-plaint against a county, by one claiming to have performed medical services to various indigent persons injured in a freight car accident in an adjoining county, and who, without authority of officers of defendant county, were placed in a hospital therein, there being no allegation that such persons were lawfully settled therein at time of injury, or that board, of overseers of said county were notified or failed to render assistance to said persons, or that such notice was given to, or that overseers of county wherein the accident occurred had an opportunity to mak'e examination into the case or grant relief under the statute, or that they authorized removal of persons to the other county, fails to state a cause of action for recovery for such medical services; construing Pol. Code, Sec. 2761, providing that county commissioners as overseers of poor shall perform duties relative to the poor as prescribed by law; Sec. 27 63, providing that counties shall relieve and support all poor and indigent persons lawfuly settled in the county; upon which two sections is based the legal duty of county to support and care for such poor, etc., and not to be performed otherwise than by such overseers; that Sec. 27613 is not applicable to the persons mentione'd in complaint; that, in absence of statute prescribing, no duty is upon a county to care for noninhabitant poor; that, under Sec. 2781, Pol. Code, as amended by Laws 1915, Ch. 256, making it duty of overseers, on complaint that any person noninhabitant of county is lying sick therein or in distress, to examine into case and grant such “temporary relief” as nature of same may require, the county’s liability to' pay for such services is dependent upon an examination and granting such relief by overseers; that we have no urgent statdte for exceptional cases, or cases where public officers fail to- act.
    3. Paupers — County Liability for Care of Indigent Sick — Sickness Contracted in Other County, Removal Therefrom, Immateriality — Statute.
    Under Pol. Code, Sec. 2781, as amended by Laws 1915, Ch. 256, Sec. 2, imposing upon overseers of poor duty of examining into' case of non-resident indigent persons lying sick or in distress in the county, etc., it is immaterial from whence such injured iperson came, or in what county he contracted sickness, unless posibly to ascertain county of his legal' residence; and the fact that they were injured in a freight train accident in another county to which they were strangers, and were removed therefrom to another county for medical attention, would not render the county wherein the accident occurred liable on ground of statutory duty, in absence of action on part of its overseers authorizing or assenting to such removal to and care of them in the other county.
    
      4. Paupers — Relief of Indigent Sick — Statute, Limited to Temporary Relief.
    Pol. Code, Sec. 2781, as amended by Laws 1916, Ch. 256, Sec. 2, concerning duty of county overseers of poor to examine into and grant “such temporary. relief as the nature of the same may require,” to non-resident- indigent sick lying sick therein or in distress, etc., authorizes only temporary relief to such persons, upon complaint made to the overseers. Held, further, that for relief voluntarily furnished by some one else, hut which might have been, furnished by overseers, such county is not liable.
    Whiting, P. J., and Gates, J., concurring specially.
    Appeal from Circuit Court, Hutchinson County. Hon. Robert B. Tripp, Judge.
    Action by James Roane, against Hutchinson County, to recover .for medical services performed in relief of certain indigent sick. From an order overruling a demurrer to -the complaint, defendant appeals.
    Reversed and remanded.
    
      W. H. Glynn, for Appellant.
    
      French, Orvis & French, for Respondent.
    (1) To (point one of the opinion, Appellant cited: M'oon v. Board, 97 Ind. 176; H'aml'in County v. Clark County, 1 S. D. 131, 43 N. W. 329; Miller v. Somerset, 14 Mass. 396; Kiifctredge v. Newbury, 14 Mass. 448.
    (2) To point two of the opinion, Appellant cited: Hamlin County v. Clark County, 1 S. D. 131, 43 N. W. 329; St. Lukes Hospital Assin v. Grand F’olrlcs County (N. D.) 77 N. W. 598.
    Respiondent cited: Pfci. Cede, Sec. 2781; Hamilin County v. Clark County, 1, S. D., 131; Supervisors of La Salle County v. Reynolds, 49 111. 186.
    (4) To point four oif the oipinion, Respondent ditéd: Newcomer v. Jefferstoin Township, (Ind.) 103 N. E. 843.
   McCOY, J.

The /allegations contained 'in plaintiff’s complaint show that on the 23d 'day of July, 1916, a freight train of the 'Chicago, Milwaukee & S't. Paul Railway Company was wrecked in Hutchinson County, and that a large number of men riding on toe top of the cars were iSerlibusly injured as the result of sai'd wreck; that each cif the s'aid 28 of said injured persons, at the 'time of sialid injury, was, and ever sinide ihas been, without property and wholly insolvent, and that nothing whatever could oir can be 'collected. from either of them; that the physical injuries •so received 'by 'each of said' persons were 'df s'uch a character ithiait prompt mieldlical and: surgical attention wias necessary; that e'aoh o|f said pensions was on toe same day of said wreck conveyed to a hospital 'at the city of Yankton, in Yankton county, this state, anld plaintiff was called up'on to professionally treat and dame for each of said person® at said hospital; that plaintiff rendered surgical attention to each of said injured persons at said hloispEltali aggregating the sum of $796; and that on the day of said accident one of the county commissioners of Hutchinson county was inf-ormeid of salid accident and that said county would he expected to pay the expense and care of said injured1 person®; thait prior to (the -beginning of this action plaintiff made an itemized 'statement and clia-im for the amount of said' professional services performed! for and on account of s'aid injured -persons, duly verified, and presented the same to the hoard of county commissioners of said Hutchinson ooiunlty; and that said claim was rejected -by said board1, which refused toi allow the same or any part thereof. To which complaint defendant county interposed a general -demurrer on the -ground that ithie- stare does- not state facts sufficient to constitute a cause off action. From, an order overruling' salid demurrer the defendant appeal®.

It is the contention of ..appelant, that the obligation, of a county to furnish care and relief for -poor and indigent persons found -within such c-cunty is purely statutory, and -that there is no statute law in this state authorizing the payment by the county for services voluntarily rendered by any one fa caring for such poor in the absence :otf an express or implied: contract made, in the manner provided by law, with the proper -county officers binding and obligating the coUmty to» pay for -such services. We are of tire opinion arid! so hold1, -that tire appellant is right in this contention.

Section 2761, Pol. Code, provides thlat the county commissioners of the sjevertil counties of the 'state shall be tlie overseers of the poor within the several 'Counties, and shall perform all tshie 'duties with reference to the poor, within the respective counties, that may be prescribed by law. As must be observed, this section of tine statute excludes! iany and all persons, other than county commis'siioners, from performing the duties of a county with reference to the poor. Section 2763, Pol. Code, provides that every county sihal-1 teffiielve aMd! support all- poor and indigent persons, 'lawfully settled therein, whenever they stand in need thereof. This 'Section, in connectlioo with' -said ‘section- 2761, fixes and CaisfS uipoo -the county the legal duty 'and1 obligation of supporting and 'daring .for the pclor lawfully settled in such county, such duty to be earned .out and .performed only by the county commissioners acting .as overseers oí the pioor. It 'will be observed! that the complaint in question does not allege that the said injured .persons were lawfully settled in Hutchinson, county at the time they were injured '.therein1; but from the allegations it appeals that these injured parties, on the 23d day of July, 1916, ■were riding on the tops of freight cars composing the freight train .incidentally passing through salid county. From common knowledge and abservation it may be inferred that .such persons were not then lawfully settled in Hutchinson county, nor inhabitants thereof, and that the duty of the county fixed' by statute found in section 2763 is not applicable to said injured1 persons',' or poor of this class; and we must look elsewhere in the statute to ascertain the statutory .duty of the counity in relation to- caring for poor who are at the time not inhabitants of such county. There clan. be no 'duty resting upon, the county to dare for noninbafoitant poor unless prescribed by statute. Hamlin County v. Clark County, 1 S. D. 131, 45 N. W. 329. The iciniy provision of our statute in relation to the care' of the poor who are not inhabitants of the county is found in section 2781, Pol. Code, as amended by chapiter 256, Laws of 1915, which provides as follows:

“It shall 'be the duty of the overseers of the poor, on ootnplialint made to them that any person not an inhabitant of their county is lying sick therein or in distress, * * * to examine into the case of such person and grant such temporary relief as the nature of the same may require.”

It must be observed from a reading of this section of the statute that the only authority conferred' upon any one to act for the county in making examination! ancl catting for and granting temporary relief to persons slide or in distress, found in such county, but who are not then inhabitants thereof, is .placed in the hands, of the overseers of the poor. The respondent's right to .recovery must stand or fall under the provisions of this section of the statute. The liability of the county to pay for services rendered in granting relief to such sick and diistressed persons: iis dtepend'ent upon an examination and granting such relief by the overseers of the poor. There does not appear to be any provision in1 this statute for .exceptional urgent cases, or oases where the public officers failed) to act, as in Maine, where it is expressly provid'ed by statute that when officials fail to do. their duty, any persplni may, after giving due notice, render .assistance, and' the county shall be lfabl-e therefor. We have no‘such statute-; besides, there is no -showing in Ubis case that the 'board of overseers olf Hutchinson coiunity was. ever notified or failed to render assistance to the injured persons in question. The allegation olf the complaint is that one of the county commissioners of Hutchinson county was informed that the accident had occurred and1 that his county would -be expected- to- pay the expenses incurred in caring fior s'aid persons. There is no -showing that this notice was gi-ven at a time when -said injured persons were in Hutchinson county, or that itihe -overseers of that county failed- to perform their duties of making examination and granting' relief. There is no. showing (that toe commissioners of Hutchinson county were ever given dr had! any -opportunity to make tre examination or grant relief to said injured persons or to perform their duties with reference to said injured poor, as prov-idedi for by the statute. Also, it will be observed) that toe salid hi lured persons w-ere actually lying sick and in distress- in Yankton- county at the time respondent was Called' upon to care flolr itfaem. It nowhere -appears that the officials of Hutchinson county in any manner authorized or caused the said injured persons- to be removed to Yankton.

We are of the view' that, when a poor person is found to) be lying side and in dis-tre'sis- in any particular .county, for the purposes .of granting temporary relief to him. under section 2781 of toe statute it is -wholly immaterial from whence suda injured1 person -came or in what otoie- county he may have contracted his sickness, unfass possibly lit might -be material to ascertain the county of hii-s- legal residence. The fact that a train in passing through Hutchinson county accidentally left the trade, thereby causing injury to indigent persons who were strangers' to Hutchinson county, and who were immediately removed to Yankton aounty for medioaL attention, -would not render Hutchinson county liable on toe grouh-d) of statutory -duty, in the absence of some action on the part of toe board of county commissioners of Hutchinson county authorizing or assenting to such removal and -care in Yankton county. Cerro Gordo Co. v. Boone Co., 152 Iowa, 692, 133 N. W. 132, 39 L. R. A. (N. S.) 161, Ann. Cas. 1913C, 79. If the overseers of the .poor of Hutchinson county had taken charge of these injured persons while they were in their county, and for the purpose of granting andl rendering assistance'to them had caused ¡their removal to Yankton county and .had there requested respondent to- care for them, then we would have a different case; but there is no 'showing that anything of this nature occurred. Hence we are of the view that the -court erred in overruling the demurrer to- the complaint.

In Hamlin County v. Clark County, 1 S. D. 131, 45 N. W. 329, this court held that Claude county was mot liable for -care ¡and attention rendered in dating for a resident of 'Clark county who was temporarily in Hamlin county. In that -case it was contended -by appellant that no night of action existed at -common law by one municipality -against another to recover fio-r temporary or other relief furnished a poor person while -o-ut of the -county of his settlement, and itih'at as no remedy was given by o-ur laws in such cases no right of recovery existed.

It was urged on the part olf respondent that, though our statutes had not in terms- provided for tne repayment of expenses' so incuinred, it had -made it the -legal duty of the county te/ relieve and support -all poor and indigent pensóme lawfully settled therein, and itlbat consequently there wlas- an implied promise on the p-art of a county to reimburse another -county for the expense incurred in furnishing temporary relief to a p-erso-n who had legal residence in the fioinn-er county. The holding in that case was with the appellant that no- statute -existed authorizing such payment. It would certainly ¡seem, therefore, that, if a county was mot obligated to pay for care and keeping of a legal resident -of the -county while temporarily absent in 'another county, no liability could exist (for the payment' of services rendered in caning for one who was not an inhabitant -of the county at all. These views seem to he ¡sustained by ample judicial authority. St. Luke’s Hospital v. Grand Forks County, 8 N. D. 241, 77 N. W. 598. In that case the court ¡said:

“It being necessary, then, to render a county liable as a debtor fioir ¡aid furnished to a pauper, either that there be a statute authorizing any person to -give it at the expíense cif the count)-, or that it iis extended pursuant to the request of some ¡one having authority 'to act, it is plain that, in the absence Of both, the 'complaint did not state a cause of action.”

In the case of Moon v. Board, 97 Ind. 176, the -Supreme Court of Indiana said:

“A claim against a county for services can exist only where there is a contract, or where there .is a statute providing * * * an'd' directing compensation. No person can voluntarily perform services for a county, and demand compensation, except in cases provided -by statute, and one who demands compensation for services rendered to a oolunity must show a contract made under dbe authority oif law with the proper officers, or el-sie show a statute making provision for such services.”

In Miller v. Somerset, 14 Mass. 396, and in Kittredge v. Newbury, 14 Mass. 448, the Supreme Court of Massachusetts said:

“Since (towns are not liable by the common law to support paupers, mo compensation can -be recovered foir a surgical operation performed on a pauper without application to the 'Overseers, even where the operation is immediately necessary.”

The -following -decisions also sustain our holding in this case: Hull v. Oneida Co., 19 Johns. (N. Y.) 259, 10 Am. Dec. 223; Morgan County v. Seaton, 122 Ind. 521, 24 N. E. 213; Cerro Gordo Co. v. Boone Co., 152 Iowa, 692, 133 N. W. 132, 39 L. R. A. (N. S.) 161, Ann. Cas. 1913C, and note; Patrick v. Boldwin, 109 Wis. 342, 85 N. W. 274, 53 L. R. A. 613. In Cerro Gordo Co. v. Boone Co., supra, being a case in principle identical with this, the Supreme Count oif Iowa held that a county is under no implied duty to reimburse another for expenses incurred in relief of patopers who first become in need of aid within its borders; that to render a county liable for aid furnished to a pauper it nmst be supplied at -the instance of the officers designated by statute- to have charge of the poor.

-Pnom tine -provisions of section 2781 it is clear that it is only temporally relief that is authorized to be furnished ■ by the overseers, upon complaint made to them, where persons are found tying sick and in- need oif such temporary relief that the overseers are authorized to charge the county in the case of nonresidents. It is only for temporary relief that the overseers are authorized to charge the county in the case of nonresidents. In this case it clearly appears that temporary relief was in fact actually furnished by some -good. Samaritan, other tlnan' the overseers of Hutchinson county, wh-o in seeking such temporary -relief removed! -s'aidi injured pensions to! a hospital an Yankton .county, and, slo far as shown by the record1, without the knowledge or consent of the said overseers. These injured persons were so remioved Ibeyond1 and outside1 of the jurisdiction off Hutchinson county and tire overseers thereof. The decisions herein cited sustain the proposition, under statutes like section 2781, that where sotne one else, other than the overseers, furnishes the temporary relief that might have been ¡furnished by the 'Overseers, but was not, the county cannot be ¡charged for sUch temporary relief voluntarily furnished by some other person, however humbne might have been the act off such other person; that the county can only he charged by and through the acts of its ¡overseers .amounting to express of implied 'alulthiorization of the temporary relief. N10 isiuich authorization seams! to have been' made in this case. There is no provision made for urgent Case's, by seictjib.n 2781, or any other provision off Our statute tew. The Massachusetts cases, supra, are clear .and direct on this point; that is, that provision far urgent Oases Cannot be read into the statute by the court; this being a case where there must be ©oime stlaitiutoiry authority for charging the county where relief was furnished a nonresident person by some one other than the prescribed count}'- officer.

The order appealed from is reversed', and the cause remanded for further procedure in hhrmtooiy with ¡this decSsiioln.

WHITING, P. J., and GATES J.

(iconcuring specially). As we re'ad the majority opinion, it holds', that, regardless of the apparent necessity off removal to Yankton .county, regardless of 'any imminent or actual- danger to the patient’s life that might result from delay, and .regardless off neglect or refusal to act on the part off ithie overseer or overseers off the-poor, ai surgeon giving aid to -one whoi is unable to pay for such services oaJnnot recover of ¡the county wherein he lay injured.

With poisisibly one -exception (Maine) -the courts recognize a fact which every humane people should- be glad! to. ¡puo'cllaim, namely, that there ‘is a moral- .obligation re-siting uploin society to care for the needly and helpl'es-s in its midst, and this regardless of whether tibe Unfiortuniate has a legal settlement in the piarticlullar political 'subdivision where he may chlance to -be situate. On the other 'hand, the counts are unanimous, we itoink, in .holding that it is only -by virtue of statute that there can exist a legal duty. So holding it would! seem that >some counts have placed the statutory method for invoking the execution of the duty ahead of, and of mióme importance than, toe duty itself, and so doing have seemed! to hold Ithlat there can be no legal duty upon which a legal liability can be predicated without there be an express contract entered into in accordance with the statute. In this it seems to us that isudbi courts have erred. That our statute creates a legal diuity upon the county to give aid to a proper party regardless of toé place of his settlement was fully recognized in Hamlin County v. Clark County, 1 S. D. 131, 45 N. W. 329. Such statutes, being enlaoted in the interests of humanity and mercy, should receive a liberal construction so as to cany into effect- Itiheir humane and beneficiemt objects. Ogden v. Weber Co., 26 Utah, 129, 72 Pac. 433,

In toe majority opinion! there is citedl the opinion in toe case of Cerro Gordo Co. v. Boone Co., 152 Iowa, 692, 133 N. W. 132, 39 Lt. R. A. (N. S.) 161, Ann. Cas. 1913C, 79, and) toe notes thereto attached. The opinion in that casie in nlo manner deals with the question of the right of one to| afford) relief in an emergency case land to colleat compensation witololut previous contract with or authority from an overseer. The notes do go into tolis question. The author of such, notes makes toe statement .that:

“Without one exception, the cases seem 'unanimously to hold that the existence of an emergency rendering relief necessary before proper steps can be taken to charge toe public, or toe refusal Of relief by public officers, gives a person furnishing relief no right to compensation in toe absence of statutory provision for sucH case.”

Am examination of the authorities cited in such notes 'discloses that toe large majority thereof do not Support the law as above stated..

Upon the other hand, the author of su'ch notes i's absolutely wrong ini his statement that there is but one 'authority supporting what we believe to be the correct law. We believe the law to 'be ithlat, when the statute imposes a legal duty, and there is such lan 'emergency as prevents toe getting of am express contract, or tile proper authorities refuse or meglieot to perform the legal duty, there arises am imphe-di promise, fou-mdiad on foe legal diuitv, to pay for necessary services. Thiis has been beflidi dm mumero-uis ¡diecisiops upon statutes which, like ours, impose upon some official foe task of carrying out foe duity. We can do mo better than to ¡refer to opinions so holding. A reading of foe ¡facts upon which ¡slueh oplinioims are (biased, anld -a comparison of foe wording of ipartibular -staltates involved with foe wording of our sitatute, ¡satisfies us tllat these opinions are exactly in point, and th'at foe overwhelming weight of authority siuipports foe rule of law for which we contend). Board of Comr's v. Denebrink, 15 Wyo 342, 89 Pac. 7, 9 L. R. A. (N. S.) 1234; Newcomer v. Jefferson Twp., 181 Ind. 1, 103 N. E. 843, Ann. Cas. 1916D, 181; Robbins v. Town of Homer, 95 Minn. 201, 103 N. W. 1023; County of Christian v. Rockwell, 25 Ill. App. 20; County of Clinton v. Pace, 59 Ill. App. 576; County of Madison v. Haskell, 63 Ill. App. 657; Trustees v. Aaron Ogden, 5 Ohio, 23; Board of Sup’rs v. Gilbert, 70 Miss. 791, 12 South. 593.

Being olf the opinion- that foe complaint was ins’ufficien.t to state a CaUise of -action even under the law for which we contend, we ¡concur in the result announced in foe majority opinion.  