BOMFORD V. GRIMES. VOL. 17 HON. FELIX J. BATSON, Cir- cuit Judge. S. F. Clark, for appellants. S. R. Hempstead, for appellee. ENGLISH, C. J. Th is was an action of assumpsit, brought by Bom ford and Shternard, partners in the prac- [*568 tice of medicine, against Marshall Grimes, as administrator of John Booth, deceased, in the Sebastian circuit court. There are three counts in the declaration : The first count alleged that Booth, the deceased, in his lifetime, was indebted to the plaintiffs iu the sum of $466.50, for medical services, Sze. The second count alleges 3 like indebtedness of Booth, in his lifetime, to the plaintiffs, and a promise to pay the same by the defendant, as his administrator, after his death. The th:rd count alleges, that the defendant, as such administrator, was iu-debted to the plaintiffs in a like sum for medical services, &c., rendered to Booth and members of his family, before and after his death, &c. The defendant filed two pleas of non-assu m psi t : 1. That he did not undertake and BOMFORD ET AL. promise, Sze., in manner and form, &c., V.
as alleged. 2. That his intestate, Booth, did not, GRIMES AS AD. in his lifetime, undertake, &c., &c., as The estate of a deceased person, in the hands of alleged. his administrator, is not liable to pay for medical The cause was submitted to the services rendered ti the family of the deceased court, sitting as a jury, upon the fol-after his death. It is the right, and duty of au administrator to lowing testimony, in substance: employ medical attendance for the slaves of the de-Scott testified, that he was at Booth's, ceased, in his possession, when sick ; and it would just before his death, and during his be the duty of the probate court to allow such ex-last illness, and knew of Bomford, one pensfs, as costs of administration. of the plaintiffs, making a medical But the employment in such case would be a per-soaal contract, as between the administrator and visit there. There were, at the time, physician ; and compen-ation therefor could not three others of the family sick beside be recovered in an action of assumpsit against the Booth, and in an adjoining room to administrator as such, as upon a promise by the in-that in which he lay. They were col-testate. ored girls, composed a part of Booth's Appeal from Sebastian Circuit Court. family, and were said to be his daugh-
AN. TERM, 1856. BOMFORD V GRIMES. ters; they had been raised in his fami- patients were all afflicted with flux, l3 —were recognized as a part of it by were quite sick, and several of them Booth, and he Ihad supported them, dangerously so. Witness thought sev-paid their medical bills, &c. Dr. Born- eral of their lives were saved by the ford while there, mixed up medicine, attentions of the plaintiffi3. Witness and went into the room where the girls resided in Ft. Smith, and in addition were, &c. Witness thought he heard to the five or six visits of the plaintiffs, 13ooth direct Bomford to attend upon when he was present, he, on several the girls, and give them his medical as- occasions, saw the plaintiffs, on their sistance, but of this he was not certatn. return to town from the residence of All witness knew of plaintiff's medi- the deceased, and enquired of them cal services to Booth and family, was concerning the sick. He knew of the one visit above referred to, ex- plaintiffs administering as many as cept that, on the day before this, he 35 or 40 doses of medicine while attend-5694 ] *met D. Bomford on his way to ing on the family, and the patients all the residence of Booth, &c. The dis- got well under their treatment. Plaint-tance from Ft. Smith, where plaintiffs iffs attended there, first and last, after resided, to the residence of Booth, was the death of the deceased, about 15 or nine miles or more. Booth died on the 18 days. Booth died 22d June 1853. next day after the visit of Bomford, Stephens testified, that soon after the adove referred to, in the summer of death of Booth, Baker, the public ad-1853. Bomford administered two or ministrator employed him to take care three doses of medicine while there. of the property of deceased, and give Witness saw him give medicine to the assistance to the sick family. That deceased. ''there were eight persons of the [ -570 Baker testified, that in the year 1853, family, the three yellow girls, and five he was sheriff of Sebastian county, and slaves, very sick with the flux, for shortly after the death of Booth, he, as about fifteen days after the death of public administrator, took possession Booth; and one or the other of the of his estate. That, on the second day plaintiffs visited them every day dur-after the death of Booth, witness went ing that time, &c. The dista nce from to his residence for that purpose, and Fort Smith to the residence of Booth, found eighf persons of the family lying was over ten miles. Plaintiffs were very sick, and the plaintiffs were at- regular physicians, and rendered ben-tending upon them as their physicians. eficial survice to the estate of Booth. Three of the sick persons were col- Dr. Main testified, that the customa-ored girls, free, and said to be daugh- ry charges of physicians, were, one dol-ters of the deceased, and the remain- lar per mile for travel from the physi-ing five were his slaves. Witness as cian's residence, to the patient; and one such public administrator, directed the dollar for each and every patient at-plaintiffs to continue their medical tended to for examination and pre-services to all the sick, ohd endeavor scription, and 25 cents extra for each to cure them. Witness was present ordinary dose of medicine adminis-and knew of plaintiffS' making five or tered. JP the visit was paid in the night six subsequent visits to them. 'Wit- time, the physician was entitled to ness advised with plaintiM in regard double mileage. If a physician traveled to their disease, and sometimes admin- ten miles, and examined or prescribed istered the medicines prescribed, Sze. for seven patients in a family, he Sometimes one of the plaintiffs visited was entitled to 817 for it, and also, to them, and sometimes the other. The twenty-five cents per dose for such
BOMFORD V. GRIMES. VOL. 17 medicines as he administered. If he services ; but, could they legally re-attended upon five patients he was en- cover therefor, of the defendant, titled to $15, &c. Witness had exam- Grimes, as the administrator of Booth, ined the plaintiffs' bill of particulars, in this action? and did not think the charges too It is manifest, that our statute of ad-high. The bill does not appear in the ministration provides for theallowance transcript. and classification of no claims or de— It was admitted, that before the suit, mands against the estate of a deceased plaintiff§ had exhibited their account, person (other than for funeral expen-properly authenticated by the affidavit ses), but such as arise upon contracts or of one of them, to the defendant, liabilities made or incurred by him, in Grimes, as administrator for Booth, some way, during his lifetime. See for allowance and classification, and Digest, chap. 4, secs. 85 to 106. that he had refused to allow more The estate of an intestate, after the than $30 for it. setting apart of the widow's dower, is It was also shown that letters of ad- to be appropriated to the payment of ministration upon the estate of Booth, such claims, in the order in which they were granted to Grimes, on the 20th are classed by the statute,with the nec-October, 1853. essary expenses of administration, and Upon the above evidence, the court the residue of the estate, if any, is dis-found, "that the said John Booth, in tributed to the children, or next of kin, his lifetime, did assume and promise, &c. in manner and form, as the said plaint- It seems that three yellow girls, who. iffs had complained against him, and were attended by the plaintiffs, after assessed the plaintiffs' damages by the death of Booth, were his daugh-reason of the premises, to thirty dol- ters, and had been raised and supported lars:" and judgment was accordingly by him as members of his family. rendered against the defendant, as The statute allows to the widow and such administrator, for that sum with family of the deceased, such grain, costs, &c. meat, vegetables, groceries and other The plaintiffs moved for a new provisions on hand, as may be neces— trial, which the court refused; sary for their subsistence for twelve 5 71.*] *they excepted, took a bill of ex- months, &c. (Digest, chap. 4, sec. 56), ceptions setting out the evidence, and but makes no provisions for paying appealed to this court. medical bills. It is to be inferred, that the court For medical services rendered to mi-found in favor of the plaintiff for so nor children, after the death of the in-much of their account, only, as was for testate, the physician must look to. services rendered by them, to Booth their guardians, or other persons who and his family, during his lifetime ; have charge of them and their prop-and this is complained of as an error, erty, *and who, by virtue of le- [*5 7 2 the plaintiffs insisting that they were gal or natural obligations, may be lia-entitled to a finding and judgment for ble for their maintenance, &c. For that portion of their demand, also, such necessaries, the minor may also which was for services rendered by be personally liable. them, after the death of Booth, to the As to the slaves of the intestate, three yellow girls aud the five slaves. when the administrator finds it neces-No doubt, from the evidence, but that sary to call in medical assistance to the plaintiffs are justly entitled to com- them, no doubt he has the right, and it pensation from some source for these is his duty to do so, uot only as a mat-
JAN. TERM, 1856. ter of humanity, but by way of preserving them as property of the estate, for the benefit of the creditors and dis-tributees ; and it would be the duty of the probate court, to allow to the administrator, the reasonable and necessary expenses so incurred by him, as part of the costs of administration. But, as between the administrator and the physician, it would be a personal contract. An administrator has no right to make a contract for a dead man., Underwood v. Millegan ad., 10 Ark. 254. The j udgment of the court below is affirmed. Cited:-19-676: 22-584; 30-317 ; 34-209; 35-263. 1. On power of administrator to subject the estate to payment, see Yarborough v. Ward, 34-204, and cases cited; Na han v. Lehman, 39-256.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.