Allison v. Cash

• Decision Date: 17 May 1911
• Citation: 143 Ky. 679,137 S.W. 245
• Parties: ALLISON v. CASH et al.
• Court: Kentucky Court of Appeals

137 S.W. 245

143 Ky. 679

ALLISON v. CASH et al.

Court of Appeals of Kentucky.

May 17, 1911

Appeal from Circuit Court, Lyon County.

Action by Mrs. C. S. Allison against Sam G. Cash and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Miller & Miller, for appellant.

Newton W. Utley and McQuown & Beckham, for appellees.

SETTLE J.

The appellant, Mrs. C. S. Allison, sought in this action to recover in the court below $5,000 damages of the appellees Sam G. Cash, sheriff of Lyon county, W. L. Crumbaugh, county judge thereof, Drs. J. H. Hussey, W. G. Kinsolving, C. H Linn, and D. J. Travis, the five last composing the county board of health of that county, for their alleged wrongful acts in compelling her to abandon her millinery store in Eddyville, causing its contents to be disinfected or fumigated, and thereby, as alleged, greatly injuring the value of same. Appellees, composing the Lyon county board of health, by answer set out the powers of the board with respect to the prevention of contagious diseases, its adoption of the rules and regulations established by the state board of health for their suppression, the prevalence in the city of Kuttawa of smallpox, the necessity of enforcing the restrictions imposed by the rules referred to for preventing the spread of that highly contagious disease to Eddyville, only two miles from Kuttawa, which included the establishment of quarantine in behalf of Eddyville against Kuttawa, and appellant's violation of such rules and quarantine. The answer admitted the closing and fumigation of appellant's millinery store by appellees, but averred that it was necessary and was done by reason of appellant's having brought to the store her son from Kuttawa, the infected city, in violation of the rules and quarantine regulations adopted and published by the board of health; that she placed in her store the cast-off clothing worn by her son from Kuttawa, and thereby further violated the regulations established by the board of health; and that upon being directed by an order of and written notice from the board of health to close the store, and go herself to her son in Kuttawa, or be quarantined in some isolated place in Eddyville 30 days, she elected to go to Kuttawa and did so but refused to close the store; that the store was thereupon closed and properly disinfected by order of the board of health, and at the end of four days, which was the time required to complete the fumigation and disinfection, the key to the store was delivered to appellant's agent, to whom permission was given to reopen the store for business, but that appellant would not permit her agent to reopen the store, and kept it closed for a month or more. The answer denied the injuries to appellant's goods alleged in the petition and also the damages claimed, and alleged that, if any injury was done them at all, it was slight, and was caused solely by the act of appellant in keeping the store closed, and that the county board of health in the matter of compelling appellant's isolation or return to Kuttawa and in closing her store and fumigating her goods acted within their power in the performance of a governmental duty, and without malice. The appellee Cash filed a separate answer, in which he adopted the denials and averments of the answer of the appellees composing the county board of health, and, in addition, set out his election and qualification as sheriff of Lyon county, and alleged his acts complained of by appellant were done in the discharge of his official duties as sheriff, in good faith, with due regard to her rights and by order of the county board of health, which he was legally bound to obey. The issues were completed by the filing of replies which controverted all affirmative matter of the answers. The trial resulted in a verdict for appellees, which the jury returned in obedience to a peremptory instruction from the court. Appellant filed motion and grounds for a new trial which was refused, hence this appeal. Briefly stated, the facts developed by the evidence were that in the latter part of March, or early in April, 1909, smallpox suddenly broke out in the town of Kuttawa. Though not of a virulent type, it quickly became epidemic. At least 75 residents to the town became infected with it, and perhaps 90 per cent. of the population, owing to erroneous diagnoses of the earlier cases and lax enforcement of quarantine measures, had been exposed to infection. Kuttawa had a population of 1,200, and Eddyville a population of 1,400. Eddyville is the county seat of Lyon county, and the place of location of one of the penitentiaries of the state in which 800 convicts are confined. The alarming situation caused quick and energetic action on the part of the county board of health, which had thoroughly organized on February 1, 1909, and adopted the rules of the state board of health, and these rules the law makes it the duty of the county board to enforce. On April 14, 1909, the county board of health had a meeting at Kuttawa. At that meeting a general vaccination was ordered, and every infected house in the town directed to be placarded. The situation continuing serious another meeting was held by the board in Kuttawa April 27th, and an order was then made compelling the removal and isolation of all infected persons, and directing that all who had been exposed to the disease should be forced to stay inside their premises and away from contact with the public until given leave by an official health certificate. For the purpose of enforcing these orders, a patrol officer was appointed for the town, and each family supplied with a printed copy of the regulations. There still being no apparent abatement of the epidemic in Kuttawa, and the danger of the disease reaching Eddyville becoming more imminent, the board of health held a meeting in the latter town on April 30th, and made and published an order putting into effect there the rules and regulations of the state board of health for the suppression of contagious diseases, and at the same time established strict quarantine against Kuttawa in behalf of Eddyville, prohibiting all passing and repassing of persons from one town to the other, and establishing guards in Eddyville at the river front and depot. At this juncture appellant, who lived in Kuttawa, but owned and was conducting a millinery store in Eddyville, had her husband to bring their little son from Kuttawa to Eddyville. She met the child at the depot in a hack, and took him with her to her store, where she removed the clothing he had on, and laid it away in the store, put other clothing on him, and kept him with her that night in a room she was occupying over the store. It was apparent from the evidence that she concealed the child in the hack in taking him from the depot to her store, for the quarantine guard at the depot saw her drive away in the hack and did not see the child, and the driver of the hack testified that she secreted him by making him get on the floor of the hack at her feet. A day or two before the arrival of the child, appellant had been refused permission by the health authorities to have the child sent to her at Eddyville. It also appeared from the evidence that in a house on the same street and near the one in which the child lived in Kuttawa some of the children of his uncle had smallpox. The bringing of appellant's child to Eddyville and the circumstances attending the act were made known to the board of health on the morning following his arrival. Its members at once held a meeting at which the following resolution or order was adopted: "The quarantine being violated by Mrs. C. L. Allison, the following motion was made

and adopted: That Mrs. C. L. Allison's place of business in Eddyville, Ky. be closed and she be permitted to return to Kuttawa at once, or be isolated for thirty days and her house and goods fumigated, and that she be permitted to secure some one to take charge of her business in Eddyville, provided they have not been in Kuttawa, or some other infected place within the past twenty days." Written notice of this action of the board was at once served on appellant by Sheriff Cash, who, after its service, closed the store for immediate fumigation, which was properly accomplished through a health officer and in accordance with the regulations of the board of health. Appeallant elected to go to her home in Kuttawa to which her child had already been returned, and she was furnished with transportation for that purpose.

It is complained by appellant that she was made to walk at least a part of the way to Kuttawa, which subjected her to discomfort. It is patent from the evidence that she was carried to the town limits and within a short distance of her home, and that the carriage could not proceed further without violating the quarantine regulations in...