Brown v. Murdock

• Decision Date: 07 November 1885
• Citation: 3 N.E. 208,140 Mass. 314
• Parties: BROWN v. MURDOCK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 314

3 N.E. 208

BROWN

v.MURDOCK.

Supreme Judicial Court of Massachusetts.

Filed November 7, 1885.

This was an action of tort to recover damages for an alleged trespass upon the premises of the plaintiff, and for the conversion of a lot of personal property. The defendant pleaded that he was one of the selectmen and a member of the board of health for the town of Palmer, where the plaintiff's premises were located, and that what he did was done in his official capacity to prevent the spread of small-pox, and to guard the public from the contagion. At the trial in the superior court it appeared that the plaintiff kept a boarding-house in the town of Palmer, and that one or more of the inmates of the house was taken with small-pox, the plaintiff with others, and that, while she was so sick, the defendant entered her house, removed, and caused to be removed and destroyed, a lot of bedding and other articles, and for a long time prevented any egress or ingress from or to said premises, and placed a red flag upon them. The defendant asked for several rulings, which were refused. But the court ruled, among other things, that under Pub.St. c. 80, the defendant had no right to use, appropriate, and destroy the plaintiff's property, excepting as done as provided by Pub.St. §§ 43, 44, nor to prevent the egress and ingress of persons to the plaintiff's boarding-house. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

George M. Stearns and S.S. Taft, for plaintiff.

C.L. Gardiner, for defendant.

DEVENS, J.

Before considering the instructions requested by the defendant, it is proper to call attention to the different and distinct duties and powers of the board of health when a person, ill with an infectious disease, is found in a house so sick that he cannot be removed, and when he is not so sick but that he may be removed with safety. In the latter case, the board of health may make provision in the manner it judges best for the safety of the inhabitants, by removing the person “to a separate house or otherwise,” and by providing nurses and other assistance, or necessaries. Pub.St. c. 80, §§ 40, 41, 75. Section 40 contemplates that if the person, under such circumstances, is taken care of where he is, it will be by virtue of some contract that he shall be thus provided for. Spring v. Hyde Park, 137 Mass. 554-557. If it is necessary to remove him, ample provision is made therefor. Should he object to the removal, a warrant authorizing the removal may be issued by two justices of the peace. Pub.St. c. 80, § 43. A suitable place to which he can be removed may be provided by the authority of the sections of the same chapter which authorize contracts to be made for hospitals, and houses, etc., to be impressed upon proper proceedings had. Pub.St. c. 80, §§ 43-48, 70-75. If a person cannot be removed without danger to health, the house or place where he remains shall be considered a hospital, and all persons residing in, or in any way concerned within, the same shall be subject to the same regulations of the board of health as before provided. Section 75. By reference to the preceding section, it is seen that, where a hospital is established, the physicians, nurses, attendants, the persons sick therein, and all persons approaching or coming within the limits thereof, and all furniture or other articles used or brought there, are subjected to such regulations as the board of health may prescribe. These sections do not authorize the taking possession by the board of health, acting without a warrant, of premises, to the exclusion of the owner thereof, or the person entitled to lawful possession, even where one is too sick to be removed; but authorize such premises, and the use thereof, to be subjected to regulations of a very stringent character. Section 41 contemplates that when a person cannot be removed, a contract may be made for his comfort where he is, and in such case persons in the neighborhood may be removed, and other precautions taken. Assuming, in behalf of the defendant, who acted for the board of health, that all he did was done honestly for the purpose of preventing the spread of the small-pox, and for the safety of the inhabitants, it was necessary that he should act within the authority given him by the statute, and the general instructions set forth in this authority clearly and distinctly.

We proceed to consider such of the numerous requests for instructions made by the defendant that seem to call for remarks in this connection. Although the disease was of a dangerous type, the case presents no evidence that the plaintiff, and those of her guests who were also infected, could not...