Elkey v. City of Seymour

Eschweiler, J. Under the law as it stood at the time the plaintiff undertook to care for Mrs. Pioch, the defendant city was under thq provisions of the general statutes relating to the care of the poor, including sec. 1499, Stats., which reads: “Every town shall relieve and support all poor and indigent persons lawfully settled therein whenever they shall stand in need thereof except as hereinafter provided.” There can be no question under the evidence in this case but that Dr. Finkle, chairman of the committee of the city poor, together with other members of the committee who knew of and acquiesced in his action, were the recognized and lawful authorities and representa'fives of the city to do the very thing which they undertook to do with the plaintiff, namely, to employ her to relieve the immediate necessities of Mrs. Pioch on February 19th, she then being lawfully settled in said city. There is here no question as to their authority to bind the city such as was presented in the case of Hittner v. Outagamie Co. 126 Wis. 430, 105 N. W. 950. The jury having very properly found that the lawful authorities of the city made the contract with the plaintiff, the contract thus made bound the defendant. Dakota v. Winne228 conne, 55 Wis. 522, 13 N. W. 559; Beach v. Neenah, 90 Wis. 623, 64 N. W. 319. While it was incumbent upon the plaintiff, dealing with public officials, to know or ascertain at her peril the scope of the powers of such public officials, she was not required to examine further and to ascertain whether or not the person to whom such lawful authorities proposed to grant relief, as to Mrs. Pioch in this case, did or did not meet the calls of the statute which prescribed the duties and obligations of such authorities in the care of the poor. That duty rested upon such officers. At the time in question Mrs. Pioch was old, infirm, and dangerously ill with pneumonia; she could no longer remain in the house of Mrs. Rohloff, with whom she had been staying for some time and to whom she was already indebted for board and lodging to the amount of $160; she had no immediate family to whom she could go or who were in a position to obtain food and shelter for her; she was without any present ability to pay for the immediately needed care, nursing, and shelter, and her position was such that the court could well say, under the undisputed evidence in this case, that she was then entitled to relief from the city within the intent of sec. 1499, Stats. It was a question of relief rather than of support, and the material distinction between the two has been pointed out. Coffeen v. Preble, 142 Wis. 183, 125 N. W. 954. The first and seventh questions of the special verdict therefore are considered immaterial. Sec. 1505a, Stats., first created by ch. 136, Laws 1899, provides in substance that if any person who receives any relief or support under the provisions of the same chapter in which is found sec. 1499 was, at the time of receiving such relief or support, the owner of property, then the value of such relief and support shall be deemed a legal and valid claim and debt against such person, and the municipality furnishing the same may sue for and collect the value thereof against such [229] person, and no statute of limitations shall be pleaded in defense thereto. This indicates quite clearly that it is not the intent of the legislature to make the mere present ownership of property subsequently available to recompense for such relief or support a jurisdictional lack of authority in the proper officials to furnish or contract for the furnishing of such aid. It is contended that plaintiff must be denied relief because on April 16th, when an offer was made by the chairman of the committee to pay her for such services, she refused the same and stated that she would not look to the city but to Mr. Smith, the then attorney for Mrs; Pioch. And further, on the ground that there was an agreement, as found by the jury,- made between plaintiff and Smith that the said Smith would collect the plaintiff’s claim out of the funds to be received from the proceedings then pending between Mrs. Pioch and her nephew. And lastly, because, as found by the jury, there was an agreement between the nephew and Smith, at the time of the settlement in June, 1915, that out of the $825 paid by the nephew to Smith as Mrs. Pioch’s attorney in settlement of the suit between those two, this claim of the plaintiff should be paid. We do not think any of these grounds are well taken. The offer to pay made by the committee and refused by Mrs. Elkey at that time was not a discharge of the obligation then lawfully subsisting between the plaintiff and the city. The only effect of such offer, if the same had been kept good by payment of the money into court or holding the same for the benefit of the plaintiff, would be to affect the question of interest and costs. There was no such tendering or maintaining of the same as affected the rights of the parties in this action. There was no substitution of debtors. It requires the consent and agreement of three, the creditor, the.old debtor, and the new debtor, to- effect such a substitution. T. W. [230] Stevenson Co. v. Peterson, 163 Wis. 258, 157 N. W. 750. There is no evidence that at the meeting on April 16th Mrs. Pioch consented to any such proposal, nor is there evidence of any implied or express authority in Mr. Smith, her then attorney, or any one else, to give consent to such substitution of debtors. There is no evidence in this case which will warrant, the conclusion that the payment by the nephew, Herman Each, of the $825 to Mr. Smith was a payment to the plaintiff of the obligation then subsisting from the defendant to her. It is undisputed that she has not received the money herself. At that time Mr. Smith was Mrs. Pioch’s attorney, and the only evidence as to any transactions between him and the plaintiff with reference thereto is to the effect that he suggested to plaintiff that she should reduce the amount of her claim so as to increase the amount that would result to Mrs. Pioch in the proposed settlement with the nephew. There is no support, therefore, for the conclusion that Mr. Smith was occupying a position of such conflicting interests as that of being attorney for Mrs. Pioch, interested in reducing as much as possible plaintiff’s claim, and at the same time the agent and attorney for the plaintiff, charged with the duty of collecting, if possible, the full amount of the.plaintiff’s charges. If there be property or money in which Mrs. Pioch has now or has had an interest which may be properly chargeable for the relief given to her by the defendant, under the contract with the plaintiff, there is ample remedy for the defendant to obtain the same under the provisions of sec. 1505a, supra. It follows, therefore, that the court should have directed judgment for the plaintiff for the amount of her claim, with interest and costs. By the Court. — Judgment reversed, and the cause remanded with directions to enter judgment for the plaintiff for the amount found by the verdict.