Town of Brattleboro v. Town of Stratton

The opinion of the court was delivered by Isham, J. The plaintiffs have brought their action on the statute against the town of Stratton to recover expenses to which they have been subject for one Lyman Ballard, who at the time was a resident of Brattleboro, and infected with the small pox, but whose legal settlement was in Stratton. We learn from the case, that Lyman Ballard was a minor, and in his own right, was not of sufficient ability to pay these expenses, but that his father was sufficiently able to pay them. And it is insisted that in consequence of his ability, and liability to pay for the necessary support and expenses of his minor children, this action cannot be sustained against the town, and that the ability of the father, should under a construction of this act, be considered the ability of the minor, or the person so infected. The court charged the jury, that “ as the said Lyman was not “ of sufficient ability, the town of Stratton was liable to pay these “expenses.” The statute, p. 515, in relation to eases arising un [310] der its provisions, is not only definite as to the person meant who shall be chargeable if of sufficient ability, but would seem to exclude any other construction. The first and second sections provide that if any person be so. infected the selectmen shall immediately provide a place remote from the inhabitants, to which such infected person is to be removed, and make suitable provisions for such person. If the question be asked, at whose expense these provisions are to be made, the statute gives the answer. In the first place, it is to be done at the expense of such person, if of sufficient ability to pay the same, who is infected with this disease, and who is capable of communicating that disease to others, otherwise at the expense of the town in which such person has a settlement. It is therefore by express legislation that the words, “ such person if of sufficient ability to pay the same,” are confined to the person spoken of in this and the former section of this statute, and refers only to the person so removed by the selectmen and for whom personally these provisions were made. And though a minor, he is chargeable for these expenses, under this statute, as if for necessaries. In an action, therefore, on this statute, we are not at liberty to extend this liability to others not embraced within the letter of the act, or within its spirit. For it was manifestly the intention of the Legislature to create & primary, liability on the town, when the person infected was unable to pay. Whether the town of Stratton will have a claim against the father of this minor, or whether the town of Brattleboro could have brought their action upon a common law liability against the father, are questions we are not called upon to decide. We merely say, that in this action, founded upon this statute, the town, where the person so removed has his settlement, is by this statute made primarily liable, in case the person infected is unable to pay these expenses. In the case of relief furnished to paupers, it has been held, that a town may support an action against a relative, where the relative would be liable at common law. 17 Vt. Rep. 79, Bloomfield v. French, and approved in Woodstock v. Hartland, 21 Vt. Rep. 563. And upon ,the authority of these cases it has been urged, that the plaintiffs could have sustained their .action against the father of this minor, and that in consequence of this liability, the word “person ” should include the father of this minor. The ob [311] jection to this is, as before remarked, that the statute will not permit us to extend this construction, for it is expressly confined to the person infected and removed. Besides, if the plaintiffs can sustain an action against the father upon such liability, it in no way will effect an action against the town upon this statute, where a direct and primary liability is created by the statute, where the person so infected and removed is unable to pay the same. We entertain no doubt, therefore, that this action is well brought against the town where this minor has his settlement, and that the ability of the father to pay these expenses, has no tendency to show the ability of the minor to pay the same. In relation to the extent of the liability of the town the court charged the jury “that the plaintiffs were entitled to recover “ whatever sum they had actually expended in providing physi- “ cians, nurses, and necessaries for said Lyman.” This language is in the very words of the act, which not only declares the liability, hut the extent of it. The propriety of this charge to the jury is not affected by the neglect of the plaintiffs in not removing all so infected to the same place. That was a matter resting entirely within the discretion of the selectmen of the town. They may if deemed necessary remove them to as many different places as there are persons infected. But the liability of those who are removed, and of the towns where they have their settlement, is confined to such expenses as arise in providing physicians, nurses, and such necessaries as the nature of the case may require. Such being the charge of the court we see no reason for setting aside this verdict. The result is, that the judgment of the county court must he affirmed.