City of Henderson v. Clayton

• Decision Date: 30 May 1900
• Citation: 57 S.W. 1
• Parties: CITY OF HENDERSON v. CLAYTON. [1]
• Court: Kentucky Court of Appeals

57 S.W. 1

CITY OF HENDERSON v. CLAYTON. ^[1]

Court of Appeals of Kentucky.

May 30, 1900

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by Parmelia J. Clayton against the city of Henderson to recover damages for injuries resulting from the violation of a statute. Judgment for plaintiff, and defendant appeals. Affirmed.

John L Dorsey, W. P. McClain, John F. Lockett, John W. Lockett, and Clay & Clay, for appellant.

S. B. &amp R. D. Vance and Montgomery Merritt, for appellee.

HOBSON J.

Appellee filed suit to recover damages for the location of its pest house within one mile of the corporate limits of the city of Henderson, by reason of which she and her family took the smallpox. She sought to recover against the city and the municipal officers jointly. This is the second appeal of the case. The opinion on the former appeal will be found in Clayton v. City of Henderson, 44 S.W. 667. On that appeal it was held that she could not sue the city and its officers jointly, and on return of the case she elected to prosecute the action against the city alone. After this a trial was had, resulting in a verdict and judgment against the city for $2,775. From this judgment the city prosecutes the appeal now before us. Section 3909, Ky. St., is as follows: "It shall not be lawful to locate or maintain any pest house or other place intended for the treatment of eruptive diseases, or diseases which are contagious or infectious, within the corporate limits of any incorporated city or town, or within a distance of one mile of the boundary line thereof. Any officer of any city or town, or other person, who shall violate the provisions of this act or in any wise aid or abet therein, shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction, shall be fined not less than five hundred dollars nor more than one thousand dollars, and be liable in damages to any person injured thereby, and if willfully done, such person or his heirs or representatives may recover punitive damages." As the city was authorized by law to establish and maintain a pest house, the acts of its officers in establishing and maintaining the pest house in question were its acts, and it is responsible to the party aggrieved, as well as its agent through whose instrumentality it acted. This was expressly determined on the former appeal.

It will be observed that, while the statute imposes a duty upon the city, it provides a remedy by action only against the city officers in behalf of the person injured. While this court on the former appeal said that a common-law cause of action was stated against the city, it was not meant that the petition stated only a common-law cause of action independent of the statute. We think the averments sufficient to constitute a cause of action independent of the statute, and also a cause of action, which, according to the common law, arises from the violation of a statute enacted for the protection of the citizen. From time immemorial, where a statutory duty for the protection of individuals...