Markham v. Brown

• Citation: 37 Ga. 277
• Parties: William Markham, plaintiff in error. vs. Perino Brown et al., defendants in error.
• Decision Date: 31 December 1867
• Court: Supreme Court of Georgia

37 Ga. 277

William Markham, plaintiff in error. vs. Perino Brown et al., defendants in error.

Supreme Court of the State of Georgia

DECEMBER TERM, 1867.

Trespass. Tried before Judge Collier. Fulton Superior Court. October Term, 1867.

Markham averred that Perino Brown, Clarke Howell, James M. Simmons, Edward Taliaferro and Powell Owen, on the 9th day of January, 1863, forcibly took possession of his certain farm and the tenements thereon, and kept him out of possession for eight months, —made a small-pox hospital of the premises, cut down his timber, burned his fences, and appropriated to their use, certain provisions thereon, etc., etc., and that a slave belonging to him, from that hospital contracted small-pox and died therefrom.

With proper averments of the value of said property, he claimed damages from said defendants for said conduct.

The defendants plead the general issue, and that if they did so occupy the premises, they did it as Justices of the Inferior Court of Fulton county, for the purpose of establishing quarantine grounds and a small-pox hospital to prevent the spread of small-pox in said county.

The evidence (so far as the same is material) showed that on the 1st of October, 1862, the military authorities of the Confederate States had taken possession of said premises for a small-pox hospital, and subsequently, to-wit: On the 1st of January, 1863, they were taken possession of (by a sort ot transfer from the military authorities) by said defendants andused as a small-pox hospital until late in the summer of 1863.

The land, etc., belonged to Markham, —the military impresment of them was against his will, and so was the occupation of it by said defendants in their official capacity.

Markham often tried to get defendants to give him possession of his property, and they refused; but finally three of them went with Markham to the place, and agreed to let him have possession of two negro houses for his farming hands to occupy, but subsequently broke this agreement, and again took and kept possession of the entire premises. The clothing of patients was carelessly thrown about, —one of Markham's slaves took small-pox and of it died.

Plaintiff also proved that many persons having small-pox, were taken to the premises; that damage of various kinds was done, and gave evidence of the quantum of his loss therefrom.

The defendants showed that there was a necessity for a small-pox hospital; that officially, on the 1st of January, 1863, they joined said military authorities in the occupancy of the premises for hospital purposes, and subsequently occupied it alone; that this was an isolated place, suitable for the purpose; that Markham sent his slave there after being warned of the danger; that the employees were paid by the Court, and offered evidence to contradict the alleged depredations on the timber, fencing, etc., and to lower the quantum of loss.

They also read in evidence, an order, passed by them officially, as Justices of the Inferior Court, on the 16th of February, 1863, by which they discontinued the employment of physician and superintendent of " Markham Hospital, " and gave to Markham possession of the dwelling-house and a portion of the kitchen next to it, —so long as necessary to still use them, the Inferior Court to retain possession of the other buildings.

The Court charged the jury that, if the defendants, as the Inferior Court of Fulton county, took possession of plaintiff's property, and the necessity was such, that the public goodrequired the seizure of said property, at that time, to prevent the spread of small-pox, defendants were not liable to damages therefor. The Inferior Court have the power to establish small-pox hospitals, and the county is liable for the trespass in such cases. If defendants made the seizure as individuals and not as Justices of the Inferior Court (this action being trespass vi et armis) they are liable for the damage they did, but not for the damage done by their agents or employees; this form of trespass cannot be committed by an agent or employee.

The Court was requested to charge the jury, that the order of 16th of February, 1863, could not protect defendants against a recovery for a seizure of the premises made before then, and without an official order by them as Justices. The Court so charged, adding that a subsequent recognition of the official acts by plaintiff, would be equal to such previous order in its protecting power.

The Court was requested to charge that the Inferior Court could not lawfully impress plaintiff's property for a smallpox hospital, but refused so to charge.

The Court was requested to charge, that compensation must be provided and paid before seizure, unless the necessity was so pressing that the public safety required no delay in the seizure. He refused so to charge, and repeated what is first above stated substantially, as his charge on that subject.

The verdict was in favor of the defendants.

A new trial was moved for, on the grounds that the Court erred as aforesaid as to the lawfulness of the seizure, in refusing to charge as requested, in charging that defendants were not liable for the damages committed by their agents or employees, and because the verdict was contrary to law, contrary to the evidence, etc.

The refusal of a new trial is brought up for review.

Hammond & Mynatt, for plaintiff in error, cited, as to the power of the Inferior Court as to hospitals, etc., Code secs. 286, 287, and 1315, act of 13th December, 1862, and this case decided at July term, 1863, by this Court.

As to trespass by agent, Code sec. 2181; 3 Phil, on Ev. 187, Chitty on pl. 80—180; Code sec. 2983, 2Gr.Ev.sec. 621, plea admits the trespass.

As to the necessity for an order, 1st, Chitty's pl. 182, and as to the compensation, Code secs. 2204, 2205, 4908 and 5054.

Hill & Candler, for defendants in error, cited, as to the official character, etc., acts of 1862, par. 34, 12th John R. 444, Walker vs. Swartout; 18th John R. 122, Alney vs. Wick; 19th John R. 62. Randall vs. Vanvechter et al, Irwin's R. C, sec. 2998.

As to their power to impress for the purpose stated, act of 1862 ante, Bishop & Parsons vs. Mayor, etc., of Macon; 7th, Ga. R. 202, Parham vs. The Justices; 9th, Ga. R.346, Irwin's R. C. sec. 2200, and as to the liability of the Court and not of the defendants individually— Irwin's R. C. sec 525, and acts of 1863 page 162.

Walker, C. J.

This is an action of trespass, brought by the plaintiff in the Court below, against the...