Barbour v. City of Ellsworth
| Decision Date | 22 December 1876 |
| Citation | 67 Me. 294 |
| Parties | JAMES M. BARBOUR v. CITY OF ELLSWORTH. |
| Court | Maine Supreme Court |
ON REPORT.
CASE stated thus: The plaintiff came into Ellsworth as a seaman on board of a vessel in which there was a case of small-pox. The municipal officers of Ellsworth caused the plaintiff, together with such sick persons, to be taken from the vessel and carried to a house as a hospital, where the plaintiff became sick with the same disease. The plaintiff contends that he was not suitably and sufficiently cared for during his sickness; by reason of which he suffered exceedingly, and became badly marked from the ravages of the disease. If the defendants would be legally liable to the plaintiff in damages, provided it could be shown that he did not receive such care and attention as he would have received if common care and prudence had been exercised by said officers in taking care of him while confined as aforesaid, then the action may stand for trial; otherwise a nonsuit to be entered.
G. S. Peters, for the plaintiff.
E. Hale & L. A. Emery, for the defendants.
This case is not distinguishable in principle from Mitchell v. Rockland, 52 Me. 118, and the more recent cases of Brown et ux. v. Vinalhaven, 65 Me. 402, and Lynde v. Rockland, 66 Me. 309.
It has been held in these and other analogous cases that the relation of master and servant, and principal and agent, does not obtain between municipal corporations and their officers, so as to render the former liable at common law for the torts of the latter committed under color of their official authority; and there is no statute creating such liability in the case at bar. Small v. Dan ville, 51 Me. 359, 361.
The tortious acts complained of by the plaintiff, if done at all, having been committed by the municipal officers of the defendant town in the course of their employment, and under color of their offical authority, it is not liable therefor. The plaintiff's remedy, if any he has, is against the individuals who did the damage. Newell v. Ayer, 32 Me. 334.
Plaintiff nonsuit.
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