Creier v. Town of Fitzwilliam

• Decision Date: 02 April 1912
• Citation: 76 N.H. 382,83 A. 128
• Parties: CREIER v. TOWN OF FITZWILLIAM.
• Court: New Hampshire Supreme Court

83 A. 128

76 N.H. 382

CREIER

v. TOWN OF FITZWILLIAM.

Supreme Court of New Hampshire. Cheshire.

April 2, 1912.

Exceptions from Superior Court, Cheshire County; Mitchell, Judge.

Action by John Creier against the Town of Fitzwilliam. Judgment in the superior court for defendant, and plaintiff excepted. Exceptions overruled.

In December, 1907, one Hautaula, a boarder in the plaintiff's family, was taken sick with the smallpox. A physician, who was also a member of the board of health of the defendant town, was first called to treat him, and subsequently the patient was quarantined by the board in the plaintiff's house. A nurse and medical treatment were provided. The plaintiff's wife assisted in caring for the patient, but the board made no contract with her or her husband to employ her or to pay her for her services. As the protection of the public required the destruction of the bedding used by Hautaula when he was taken sick, it was destroyed by the board of health. The court ruled that the plaintiff could not recover for the services of his wife, or for the bedding destroyed, and he excepted.

Conrad W. Crooker, of Keene, for plaintiff.

Orville E. Cain, of Keene, for defendant.

WALKER, J. The plaintiff cannot recover of the town for the care furnished by his wife to the patient, because she was not employed by the health officer in charge of the case, and the board of health has not decided that any part of this expense should be "deemed a legitimate expenditure for the protection of the public health." Laws 1899, c. 100, §§ 1, 2; Pettengill v. Amherst, 72 N. H. 103, 54 Atl. 944.

When the officer destroyed the infected bedding, he was not acting as the agent of the town, but as a public officer, under legislative authority, for the benefit and protection of the public. He was as much a public officer as highway surveyors, police officers, and firemen (Brown v. Vinalhaven, 65 Me. 402, 20 Am. Rep. 709; Barbour v. Ellsworth, 67 Me. 294; Ogg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499), for whose act while in the discharge of a public or governmental duty, even if wrongful, the town is not responsible, in the absence of a statute making it responsible therefor. Edgerly v. Concord, 62 N. H. 8, 13 Am. St. Rep. 533; Rhobidas v. Concord, 70 N. H. 90, 47 Atl. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; O'Brien v. Derry, 73 N. H. 198. 60 Atl. 843; Gates v. Milan, 76 N. H. 135, 80 Atl. 39, 35 L. R. A. (N. S.) 599. As no statute has been found making towns...