Lynde v. City of Rockland

• Decision Date: 13 December 1876
• Citation: 66 Me. 309
• Court: Maine Supreme Court
• Parties: GEORGE A. LYNDE v. CITY OF ROCKLAND. 1876.

66 Me. 309

GEORGE A. LYNDE v. CITY OF ROCKLAND.

1876.

Supreme Judicial Court of Maine.

December 13, 1876

ON REPORT.

CASE set out in the declaration as follows:

" For that on the twenty-eighth day of May, 1872, the plaintiff was the owner and proprietor of a new, spacious and commodious hotel, situated in Rockland, in the county of Knox, called the Lynde hotel, and was doing therein a large lucrative and increasing business with great profit to himself in accommodating a large traveling public from all parts of the country as guests, and on said twenty-eighth day of May, aforesaid, the said defendants by their health committee, and their agents and officers of the said city of Rockland duly authorized therefor, took possession of said hotel against the wishes and remonstrance of the said plaintiff and maintained the control of said Lynde hotel for the space of thirty days, through and during said time used it for a pest house and hospital for divers persons sick and infected and believed by them to be sick and infected with the infectious and terrible disease, called small pox, and maintained and kept said persons so infected and sick with the small pox in the rooms of said hotel thereby endangering the lives and health of the said plaintiff, his wife and family, and inmates of said hotel, and put them in imminent and immediate peril and great terror and destroyed the business, reputation and character of said hotel for all time to come.

And the plaintiff further says that at no time was there any person in his said hotel so sick with said disease but could have been removed therefrom without any danger to his or their health, and that the defendants had due and proper notice of the existence of said small pox in his hotel as soon as it came to the knowledge of him the said plaintiff and he urged the defendants to remove said persons if sick with said disease without delay, and that said defendants refuse so to do; and at the time the defendants took charge of said persons in said hotel for the purposes aforesaid, the said defendant put up a red flag at the corner of said hotel and warned the public in the most public and extensive manner that said hotel contained persons in it sick with said disease and placed a guard around said hotel to prevent people from entering the same; and that said defendants used and destroyed a large amount of personal property in and around said hotel, and to the furniture and rooms of said hotel. And the plaintiff avers that he was put to great expense in cleaning and placing said hotel in suitable condition to receive guests, from the effects of said small pox. The said defendants wholly neglected to do so, nor did they in any manner leave said hotel safe for the plaintiff, his family or future guests.

And the plaintiff further says that the damage to his business from that time to the present, and in the future, to said hotel and for the use of the same by the said defendants as a pest house, and for the injury, suffering and expense of himself and family amounts to thirty thousand dollars, to the damage of the said George A. Lynde (as he saith) the sum of thirty thousand dollars."

Upon the reading of the writ, a question arose whether the action could be maintained, even if all the facts alleged were proved to be true; whereupon the case was taken from the jury by consent and submitted to the full court to determine the question of law. If the action can be maintained upon proof of all the facts contained in the declaration, then it is to stand for trial; otherwise a nonsuit is to be entered.

J Baker, for the plaintiff.

The only question for the court to decide is, " whether the action is maintainable, if all the facts alleged were proved."

I. The title of the plaintiff to the hotel property, his business and the nature of the damages he has sustained are all set out in full in the writ; and we presume no question will be made on these points.

II. The only other question is, whether the defendants are liable under the circumstances set forth in the writ. These allegations are that " the defendants by their health committee and their officers and agents duly authorized therefor, took possession of said hotel and held it thirty days, and used it as a pest house and hospital."

The words, " health committee and the officers and agents of the city," would include the health committee, the municipal officers, or a board of health, either and all of them. They were " duly authorized therefor." Then the question is reduced to this, can any officers of the city, acting within the scope of their official duties, as defined by the laws of the state, bind the city to pay rent or damages or both, by taking possession of private buildings for a hospital for small pox patients.

We maintain that they can, under R. S., c. 14, §§ 1, 24, 29 and 30.

All the cases that have been decided in this state involving rights in cases of small pox, are grounded on the principle that such liability exists; and the reason why such suits against cities and towns have not prevailed, was because the officers of the cities and towns exceeded their authority. Mitchell v. Rockland, 41 Me. 363. Same v. Same, 45 Me. 496. Same v. Same, 52 Me. 118. Pinkham v. Dorothy, 55 Me. 135, 138. Kellogg v. St. George, 28 Me. 255. Kennebunk v. Alfred, 19 Me. 221.

The allegations in this writ, if proved would show that the city authorities and officers found persons too sick to be removed and so kept them where they were in the hotel thirty days, as a hospital.

If there is any inconsistency in the declaration, it is amendable, and the case should be sent back to the trial court that the amendment may be made and the case tried.

It will be very remarkable if city authorities, acting within the scope of their official duties as defined by law, can take private property for public uses without any compensation, in direct violation of the constitution; for it is very certain, officers of the city, if they keep within the law, are not personally liable.

A. P. Gould & J. E. Moore with T. P. Pierce, city solicitor, for the defendants.

This is an action of tort. There is no allegation of a promise. If maintained at all, it must be secundum allegata. It is presented upon a parol demurrer; the presiding justice considering that the action could not be maintained if all the allegations in the writ were proved, and that therefore it was not worth while to put it to trial.

The action is based upon charges of tortious, or wrongful acts of the health committee of the city; and the question is, whether if these allegations are true, the city can be held accountable in an action for damages.

The action is based in a misconception of the character of a health committee of a city. They are not the agents or servants of the city, but of the state at large, or the public.

Though chosen by the city, it is not for the special benefit of that particular municipality; but their office is public, and their duties are to the community at large. They are elected by the city in obedience to a statute of the state to perform a public service, in which the town or city has no peculiar interest, and from which it derives no special benefit in its corporate capacity. Such an...