Perley v. Inhabitants of Oldtown , 49 Me. 31 ( 1860 )

The opinion of the Court was drawn up by

Mat, J.

It is made the duty of overseers of the poor, in theif respective towns, to provide for the immediate comfort and relief of all persons, residing, or found therein, falling into distress, and standing in need of such relief; but, until such relief is furnished, towns are held liable to pay any expense necessarily incurred therefor, by any inhabitant not liable by law for the support of such person, after notice and request to the overseers whose duty it is to make the provision. R. S. of 1841, c. 32, § 48, which were in force when the services, now sued for, were performed. Under this statute, and we are not aware of any difference in the present R. S., c. 24, § 32, it is clearly the duty of overseers of the poor to see that suitable provision is actually made for the suffering poor within their towns, whenever they have notice that any such have fallen into distress and stand in need of immediate relief. It is not enough that they contract with other persons to provide it. Such persons may violate their contracts, and the necessary provision for relief may not be made. There is quite a difference between actual relief furnished and a contract for it; and any construction of the statute, that makes the latter a substitute for the former, in such a sense as to exonerate the overseers of the poor from further duty, and deprive the humane inhabitant of the right to recover for supplies actually furnished, after notice and request, in cases of actual necessity, still existing, notwithstanding the making of any such contract, ’would be in derogation of the manifest purpose of the statute, and an outrage upon that public humanity which not only originated, but was the basis of our pauper laws.

When the necessary relief has in fact been furnished by the overseers of the poor, then the right of the inhabitant to recover for such as he may afterward provide ceases, because the necessity for individual action no longer exists. But, so long as the necessity for immediate relief exists, and it is actually unprovided, and not offered, the law contemplates that the individual inhabitant who furnishes it shall be remunerated by the town. Underwood v. Inhabitants of Scituate, 7 Met., 214. Nor will the mere fact that he had knowledge that the overseers of the poor had employed some other person to furnish the necessary supplies, take away his right to recover therefor, unless it further appears that he had, at the time of furnishing the supplies, reasonable ground to believe that they would be seasonably furnished by the overseers of the poor; and it ought, perhaps, also to appear that they would in fact have been so furnished.

In the case before us, Doct. Fortier having neglected to render the needed services, notwithstanding his employment therefor, of which there is evidence, and of which the plaintiff had knowledge, the plaintiff, notwithstanding he was forbidden to do so, might, after notice to" the overseers and their neglect to make further provision, very properly render, at the expense of the town, the services which the immediate necessity of the pauper’s case required. Any other rule, in a case like the present, would permit the ravages of disease to outrun the benevolence of the statute, and the death of the pauper might be the result. Whether such a state of facts existed in this case, as to justify the plaintiff in charging his services to the defendant town, was a question for the jury under suitable instructions. Those which were given, not being in harmony with .the principles which we have indicated, and those which were requested having been withheld, the exceptions must be sustained.

Exceptions sustained.

Tenney, C. J., Rice, Appleton, Cutting and Kent, JJ., concurred.