City of Lexington v. Batson's Adm'r

• Decision Date: 15 June 1904
• Citation: 118 Ky. 489,81 S.W. 264
• Parties: CITY OF LEXINGTON v. BATSON'S ADM'R.
• Court: Kentucky Court of Appeals

81 S.W. 264

118 Ky. 489

CITY OF LEXINGTON v. BATSON'S ADM'R.

Court of Appeals of Kentucky.

June 15, 1904

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by Otto Batson's administrator against the city of Lexington. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Wm Rogers Clay and C. W. Miller, for appellant.

Beauchamp & Calhoun, for appellee.

O'REAR J.

Appellant a city of the second class, is given the power to establish and enforce quarantine laws and regulations to prevent the introduction and spread of contagious diseases within the city, and to establish and maintain eruptive hospitals in the city. Section 3058, Ky. St. 1903. It is likewise made the duty of the city council to appoint a board of health, which has the same powers within the city that the county board of health has in the county under the statute. Section 2059, Ky St. 1903. Appellant had established such hospital and appointed the board of health. During an epidemic of smallpox in the city, plaintiff's intestate had been exposed to contagion, and was consequently confined by the order of the board of health in the city hospital. He became sick of the disease, and died. It is charged that the city suffered its pesthouse to become foul and unfit for use as such, and that it negligently failed to provide a suitable pesthouse for the detention and treatment of those who had been exposed to or had the disease; that the city failed to provide competent physicians, or suitable or any medicines, or sufficient clothing or covering, or sufficient or fit food for the inmates; that those in charge neglected plaintiff's intestate in his sickness--by reason of all which he died. The evidence, it is conceded, was sufficient to sustain the jury's verdict finding for the plaintiff.

Under the authority of Twyman's Adm'r v. Board of Councilmen of Frankfort (Ky.) 78 S.W. 446, we must hold that the city is not civilly liable in tort for the acts complained of. The remedy, and, so far as we know, the only present legal protection, of those unfortunates who may be maltreated as is charged in this suit is by an indictment of the officers in charge for misfeasance or nonfeasance, and a civil action against the individuals who have been guilty of the wrongs. Plaintiff joined the members of the board of health as defendants to the suit. But the court let them out on a demurrer to the petition....