Malone v. Escambia County , 116 Ala. 214 ( 1896 )

HARALSON, J.

By the Code of 1852, there was no provision by which the county was liable for medical services rendered at the request of the sheriff to insolvent prisoners confined in jail. — Mitchell v. Tallapoosa County, 30 Ala. 130.

By an act approved February 14, 1856 (Acts of 1855-56, p.,137), it was provided, that whenever any person was confined in jail who required medical attention, the sheriff or j ailer should procure such medical attention ; and it was made lawful for the commissioners’ court of each county to allow physicians reasonable fees for attending insolvent prisoners in the county jail. The provisions of this statute — of 1856 — were carried substantially into the penal Code of 1866, as section 243, and made to include clothing and bedding ; and this section was again carried into the subsequent Codes of 1867, 1876'and 1886, as sections 3791, 4493 and 4592, respectively.

An act was approved February 14, 1860 (Acts of 1859-60, 13. 72), for the benefit of insolvent white persons confined in jail on any criminal charge, the provisions of which act were carried into the Codes of 1867, 1876 and 1886, as sections 1468, 1749 and 1471, respectively, with the word, “white,” before the word “person,” omitted in the two last Codes, so as to make the statute refer to all persons alike, slavery having been abolished. It was confined to indigent white persons in the beginning, because all persons able to do so were required to defray their own expenses while confined in jail, and masters of negro slaves were supposed to be able to pay for them.

We then have the sections of the Code of 1886, which read: “1471 (1749). Sick prisoners in jail. — Whenever any insolvent person, confined in jail in any county of this State on any criminal charge, becomes sick and requires medical attention or medicine, the sheriff or jailer of the county must give notice to the probate judge of the county of the condition of such person, and the probate judge must, on receiving-such'notice, or on receiving information in any other manner of the sick and destitute condition of such person, employ a physician, and furnish medicines as may be by him prescribed for such sick person, and the reasonable expenses of such medical attendance and medicines shall constitute a valid claim against the county.” (Code of 1896, § 3239).

“4542 (4493). Necessary clothing, medicines, etc., to insolvent prisoners. — Necessary clothing and bedding must be furnished by the sheriff or jailer, at the expense of the county, to those prisoners who are unable to provide them for themselves ; and also necessary medicines and medical attention to those who are sick, who are unable to provide them for themselves.” (Code of 1896, § 4953).

These two sections in their present form, as stated above, have been in the last two Codes, at the time of their enactment, and the latter section, as to medicines and medical attendance, has been in existence since 1855-56. Their continuance in these Codes, indicates an indisposition on the part of the legislature to repeal either, but to give them both effect.

When reading the two sections together, taking into consideration the history of their respective enactments and continuance in the Codes, it cannot be doubted that the duty imposed by them, may be performed either by the sheriff or the probate judge. It may be, that it would be better, ordinarily, for the sheriff to comply with the provisions of the first named section, and allow the judge of probate to act in the premises ; but if he should not do so, for any reason, the liability of the county for medicines and medical attendance provided by him, under circumstances allowed by the latter section, would be no less binding on the county than when supplied by the probate judge under the former section.

Sections 4535-4555 of the Criminal Code of 1886 (Code of 1896, §§ 4946-4966), having reference to imprisonment in the county jail, prescribe that the sheriff has the legal custody and charge of the jail and of all prisoners committed thereto (except as otherwise provided by law), and may appoint a jailer, for whose acts he is responsible, and also what persons may be confined in jail; and in the section above refei’red to — 1471—under which the probate judge is required to employ a physician and furnish medicines to . indigent persons, the requirement is, “to any insolvent person confined in jail,” etc. It is plain that the statutes make provision only for prisoners who have been lawfully committed to and are confined in jail, or in some other place in the stead of the jail, when prisoners are removed on account of fire or ill health, under the provisions of 4544 and 4545 of the Code.

A fifth count was added by way of amendment. To the complaint as a whole, as appears from the judgment entry, the demurrer was interposed, on grounds among others, that the several counts in the complaint fail to state that the man, Tom Dower, was confined in jail on a criminal charge at the time the services were rendered to him ; and that it appears on the face of the complaint, that the plaintiff has no- cause of action against the county for the services rendered by plaintiff.

When suit is brought under either of said sections, the complaint should show that the services were rendered or medicines furnished to a prisoner in jail, and that he was unable to provide such services and medicines for himself, or was in a destitute condition. Without such averment, it would not appear that it contained any cause of action against the couuty.

The demurrer was well sustained. The plaintiff declined to plead further, and judgment was rendered in favor of defendant. In this there was no error.

Affirmed.