Wing v. Inhabitants of Chesterfield

Devens, J.

1. The plaintiff contends that the presiding judge erred in permitting evidence to be introduced that the neighbors of the pauper, Mrs. Olds (for medical attendance upon whom this action is brought under the Gen. Sts. c. 70, § 16), were in the habit of sending her articles for her comfort, “ as milk and other delicacies such as a sick person would need ” The only suggestion made is that this was immaterial. We cannot see, upon these exceptions, that it was not competent on behalf of the defend ant, upon the issue whether the services rendered by the plaintiff were reasonably necessary; but, if immaterial, the plaintiff fails to point out wherein he was liable to be injured by the introduction of it, or that it in any mode affected him unfavorably. Where evidence purely immaterial has been admitted, and it is not shown that such admission can have in any way prejudiced the excepting party, the verdict will not be disturbed. Burghardt v. Van Deusen, 4 Allen, 374. Bragg v. Boston & Worcester Railroad, 9 Allen, 54.

2. Nor was it erroneous, on the part of the presiding judge, to decline to give the instructions asked at the conclusion of the charge. He had already given them substantially, as appears by his statement embodied in the bill of exceptions, and this was all to which the plaintiff was entitled. Morris v. Bowman, 12 Gray, 467. Townsend v. Pepperell, 99 Mass. 40. He might well apprehend that by repeating them he would give them an undue prominence among the various considerations he had brought to the attention of the jury. His remark, “ that the plaintiff was simply asking him to repeat the portion of his charge most favorable to the plaintiff’s case,” was not, that we can perceive, unjust or calculated to influence the jury against the plaintiff’s case ; it sim ply left such portion to be weighed by them in connection with the rest of the charge.

3. The instruction “that if Cole” (who acted for the town of Monterey to see that the arrangements which it had made for the pauper were faithfully carried out) “ told the plaintiff that the town of Monterey had made arrangements for Mrs. Olds’ being provided for, it was the plaintiff’s duty to stop attending her until he could ascertain whether or not she was furnished with other medical attendance ; and if he found she was not so attended and was in want, he then might have attended her and recovered his pay from the defendant town,” is to be taken in connection with the instructions also given as stated by the judge, in substance, “ that if the jury are satisfied that Mrs. Olds was in need of medical aid, and that neither Chesterfield nor Monterey did furnish a physician to fully meet that want, and the plaintiff did in fact supply that want, then he is entitled to recover for such services as he so rendered after notice to Chesterfield; ” and further ‘ that making arrangements with Meecham by the town of Monterey does not relieve the town of Chesterfield, if in fact neither the agent of the town of Monterey nor the town of Chesterfield furnished medical aid for Mrs. Olds.” Its obvious meaning is that after the plaintiff was thus informed that provision was made for Mrs. Olds, it was his duty to give an opportunity for medicall attendance, if such was necessary, to be furnished by the town to! which she was properly chargeable. That town had the right toj furnish such attendance through its own agents; and if it did thus! furnish it, the town of Chesterfield could not be made liable to the plaintiff. Information having been properly communicated to the plaintiff that provision for medical attendance had been made, the plaintiff could not insist on continuing his attendance.

After ceasing, and thus affording an opportunity for other medical attendance, if he found that it was not furnished, the instruction permitted him to recover if he then attended her, she being in need. It could not be inferred from the statement of what the duty of the physician required, that the court intended to limit the statement of the law made elsewhere, that if Mrs. Olds was in want of medical aid, and neither Monterey nor Chesterfield furnished it, and the plaintiff did, he could recover after notice to Chesterfield, and that mere arrangements to furnish it would not be sufficient.

4. There was sufficient evidence to go to the jury upon the testimony of Meecham that if the plaintiff furnished the medical attendance upon an agreement that the plaintiff should be well paid for it if he cured Mrs. Olds, and if he failed that he should be paid nothing. If the services were and continued to be rendered under that understanding with Meecham, the plaintiff would not be entitled to recover against the town, and this was the instruction. Exceptions overruled..