Opinion
Decided October 1, 1929.
A health officer of a town has no authority to contract for medical attendance at the expense of the town, and no promise on behalf of the town to pay for such attendance can be implied from his conduct.
ASSUMPSIT, by a physician for professional services, medicines and supplies furnished to a diphtheria patient resident in the defendant town. Trial by the court and verdict for the defendant.
September 17, 1925, the plaintiff was called to attend a child suffering from diphtheria in the family of William Paul, a resident of Peterborough. The call came from a neighbor who acted solely upon his own initiative. The plaintiff instituted a quarantine and continued to treat the child until it recovered. September 20, 1925, the plaintiff notified the health officer of the local board of health of the situation and was directed by him to give antitoxin to the other children in the family. No change in the quarantine measures adopted by the plaintiff were made or suggested by the town authorities. The court found that no one in authority in the defendant town employed the plaintiff or expressly authorized him to charge his bill to the defendant, and the selectmen declined to pay it. The question whether under the foregoing facts the plaintiff could recover upon an implied promise was reserved by Young, J.
James F. Brennan, for the plaintiff.
Sullivan White, for the defendant.
While it is well settled law that a "promise may be implied against" a town "from the acts of its agents within their authority, as in the case of natural persons," (Glidden v. Unity, 33 N.H. 571, 577) this principle does not help the plaintiff's case. The only town official who did acts from which a promise could possibly be implied was the health officer. He had no authority to furnish medical attendance at the expense of the town even by express contract (Congdon v. Nashua, 72 N.H. 468, 471) and a fortiori no promise on behalf of the town could be implied from his conduct. This case is governed by the principles laid down in Pettengill v. Amherst, 72 N.H. 103 and Creier v. Fitzwilliam, 76 N.H. 382, and the order must, therefore, be
Judgment on the verdict.
All concurred.