Evidence, Opinion: experts. Witness. Pauper. Words, "Shall." Upon the question of the reasonableness of a charge for medical attendance upon a smallpox patient at the attending physician's house in a city, it is within the discretion of the presiding judge to find disqualified as an expert one who has been an overseer of the poor and a member of the board of health of an adjoining town and who has on several occasions employed several physicians in the treatment and care of smallpox patients.
The provision of St. 1898, c. 425, § 2, (R.L.c. 80, § 6,) that "All persons absent from the Commonwealth of Massachusetts for ten years in succession shall lose their settlement" is not retroactive.
LORING, J.
1. The exception is not well taken to the finding that Marsh was not qualified as an expert.
What distinguishes the case at bar from Kendall v. May, 10 Allen, 59, is that no professional services were rendered in that case, while here the question called for an opinion on the amount reasonably due as compensation for the professional services of Dr. O'Connor. We do not go so far as to say that one who is not a doctor could not qualify as an expert on the question of the reasonableness of the fees charged by a physician for medical services, yet the practical result which would follow if every one who had hired physicians or knew of the amount charged by them could be called as an expert on the question is a matter to be considered.
In the case at bar we cannot say that on the evidence before him the presiding judge did not find that Marsh's experience was confined to the fees charged by two or three physicians, on two or three occasions, in the treatment of smallpox cases which may have been quite unlike the case of smallpox in the action now before us, in a small town like Methuen, and consequently that he was not qualified to give an opinion on the reasonableness of the fee charged in this case by a physician in a city like the city of Lawrence. See Muskeget Island Club v. Nantucket, 185 Mass. 303; Phillips v. Marblehead, 148 Mass. 326.
2. We are of opinion that the last clause of St. 1898, c. 425, § 2, now R.L.c. 80, § 6, is not to be construed to be retroactive.
The defendant contends that the word "shall" in the clause in question is not indicative of the future but of the imperative character of the provision in question; that it is not expressive of time but is used to declare that the provision is a mandatory enactment; and that the person who drafted the clause in question had his mind fixed on past settlements, as is shown by the previous clause of this section.
The section repealed by St. 1898, c. 425, § 2, was a section which made void all settlements acquired by any provision of law in force prior to February 11, 1794; and the first clause of St. 1898, c. 425, § 2, makes void all settlements not fully acquired after May 1, 1860.
It is however to be observed that the clause in question is altogether a new provision. There is no counterpart to it in the section repealed by the section in question. Also that the Legislature did not enact in terms that all persons absent from the Commonwealth for ten consecutive years shall be regarded as having lost their settlements, as the defendant asks us to hold was enacted by this section. What the Legislature did provide was that "all persons absent from the Commonwealth of Massachusetts for ten years in succession shall lose their settlement," in the words of the original act. St. 1898, c. 425, § 2. The use of the word "shall" in the clause in question is in contrast with the words "are hereby defeated and declared to be lost," found in the earlier clause of the section which deals with past settlements. In other words, so far as language goes, the two clauses are not similar but are in contrast with each other.
We see nothing here to take this section out of the general rule that even in a pauper settlement act the word "shall" prima facie refers to the future. Worcester v. Barre, 138 Mass. 101.
Exceptions overruled.