T. D. JOHNSON and J. N. BROWN v. THE COUNTY OF SANTA CLARA, 28 Cal. 545

By the Court, Sanderson, C. J. The demurrer to the complaint should have been sustained upon the ground that it does not state facts suEcient to constitute a cause of action. The power of “ The Board of Directors of the County Infirmary of Santa Clara County ” to provide for the care and medical treatment of sick persons, is limited to such as are indigent and are also residents of the county. A contract providing for the care and treatment of sick persons not indigent, or if indigent not residents of the county, would be void for the want of power in the Board to make it.

A county is not liable generally for the care "and treatment of sick persons, and therefore when it is sought to make it liable it must appear from.the complaint that the care and treatment was bestowed upon the class of persons described in the twentieth

section of the Act concerning County Infirmaries for the relief of the indigent sick. (Laws I860, p. 217.) No recovery can be had in such an action except upon proof, if the facts are controverted, that the persons so treated are indigent and are residents of the county, and it is a familiar rule of pleading that every fact which, if controverted, the plaintiff would be compelled to prove in order to sustain his action, must be alleged in his complaint. (Jerome v. Stebbins, 14 Cal. 457; Green v.

Palmer, 15 Cal. 411.) This error alone makes it necessary to reverse the judgment." But as there is another point which is, in our judgment, fatal to the plaintiffs’ cause of action, and which no amendment of the complaint can obviate, we deem it advisable to pass upon it now, in order that the parties may be spared further and useless litigation. We are of the opinion that the services sued for in this action are covered by the contract between the plaintiffs and the Board of Directors of the County Infirmary of the 3d of January, 1862, set out at length in the defendant’s answer.

In that contract the plaintiffs “ covenant and agree to attend the County Infirmary and County Jail of said county as physicians and surgeons, and as physicians and surgeons to prescribe for and attend all the inmates of said Infirmary and Jail who may be subjects of medical and surgical treatment, and perform all surgical operations upon any and all of the inmates of said Infirmary and Jail who may require the same.” Under this agreement the plaintiffs were bound to attend and treat “ all inmates of the County Infirmary,” whether afflicted with contagious diseases or not.

What, then, is the “ County Infirmary?” Is it one building, or may it be more, and-if more, must they' all be adjacent, or may they be distant from each other, and yet altogether constitute the “ County Infirmary1?” That the “ County Infirmary ” is not necessarily limited to one building is apparent from the eleventh

section of the Act under which it was- created and established, which provides that “ when necessary, it shall be the duty of the Board of Directors to provide a suitable building or buildings for the separate accommodation of the indigent laboring under contagious disease.” Obviously buildings so provided are as much a part of the “ County Infirmary ” as any building previously provided for the -accommodation of those who are not laboring under coritagious disease; and the inmates of the former buildings are in every sense as much inmates of the “ County Infirmary” as are the inmates of the latter.

This contract must be read by the light of the statute by which it was authorized to be made. Thus read, it is clear that the services sued for in this action are covered by the contract in question, and if, as alleged in the answer, the plaintiffs have been paid the price stipulated therein, they have no cause of action. Judgment reversed and cause remanded. Mr. Justice Rhodes, being disqualified, did not sit in this cause. ,