Levin v. City Of Burlington

• Decision Date: 05 November 1901
• Parties: LEVIN. v. CITY OF BURLINGTON.
• Court: North Carolina Supreme Court

39 S.E. 822

129 N.C. 184

LEVIN.

v.CITY OF BURLINGTON.

Supreme Court of North Carolina.

Nov. 5, 1901.

MUNICIPAL CORPORATIONS — ENFORCEMENT OF PUBLIC LAW—LIABILITY—DAMAGES WITHOUT INJURY.

A city is not liable in damages to one who was arrested and detained under Laws 1893, c. 214, §§ 14, 15, 25, on the ground of havingbeen exposed to smallpox, where the officers acted properly and without malice, though the plaintiff may have suffered damage thereby.

Douglas, J., dissenting.

Appeal from superior court, Alamance county; Councill, Judge.

Action by Koen Levin against the city of Burlington. From a judgment in favor of the defendant, the plaintiff appeals. Affirmed.

Bynum & Bynum, for appellant.

C. E. McLean, for appellee.

FURCHES, C. J. This is an action to recover damages for the wrongful arrest, detention, and ill treatment of plaintiff by the defendant city. The defendant demurred ore tenus to plaintiff's complaint, and we know of no better way of stating the case than by inserting the entire complaint, which is as follows: "The plaintiff, for cause of action, alleges: (1) That he is a resident of the city of Burlington, and is a peddler by occupation. (2) That the city of Burlington is a municipal corporation, duly chartered by the legislature of North Carolina, and was managed at the times hereinafter mentioned by a mayor and a board of aldermen or commissioners duly elected by the people within the corporate limits of the said town, and by policemen duly appointed by the said board of aldermen or commissioners. (3) That on or about the * * * day of February, 1899, the plaintiff came to the town of Burlington, and stopped for one night at a boarding house in said town kept by Mrs. Mary Ingle, where he had been stopping when in Burlington, for some months, leaving said town the next morning with his horse and wagon and goods, and went to the factory, known as Altamaha, nine miles distant from said town, for the purpose of selling his goods and wares, as he was licensed to do by the laws of North Carolina. (4) That plaintiff had never in his life been exposed to smallpox up to that time. (5) That after arriving at Altamaha one James Zachary, who was the duly-appointed police officer of said town of Burlington, as plaintiff is advised and believes, followed him from Burlington to said Altamaha, and arrested him, under and by virtue of an alleged warrant issued by the mayor of said town of Burlington. Plaintiff does not know the charge contained in said warrant, and has applied to the mayor for said warrant, who told him it had been destroyed; but he avers, from information and belief, that said mayor issued said warrant, and sent the same to Altamaha by the police officer of the town, and had plaintiff arrested, under special authority of the said city, and under special instruction given by said board of aldermen or commissioners. (6) That the said Zachary, the policeman of the said town of Burlington, professing to act by virtue of said warrant, did arrest this plaintiff at Altamaha, against his earnest protest, and carried him back to the town of Burlington; that when he got there he was told by the policeman that he had to go in the house of Mrs. Mary Ingle, and stay there fifteen days; that smallpox had broken out in the city, and that this plaintiff had stayed there the night before, and had to go there and stay; that plaintiff protested that he had never been exposed to smallpox in his life; that he had spent the night before there in a room by himself, with no knowledge of any smallpox in the town, and had left in the morning, not being ex-posed, and he earnestly protested against being put in the house; that he was informed at the time that there was a man in the house who was declared to have smallpox; that he asked for the mayor to be sent for or that he be examined before the mayor, but the mayor refused to come to him or to allow him to be carried before the mayor, but he was told by the said policeman he had to go into said house; that he begged the said policeman, and one of the board of aldermen, one Moore, who, as he is advised and believes, was acting for the said town by the authority of the town, not to confine him in a house where smallpox was, as he had a great dread of the disease, but to put him in another house, and he would pay all the expenses, and pay for a man to watch him, and see that he did not run away; that this request was refused, and he then begged them to put him...