Town of Knightstown v. Homer

• Decision Date: 30 June 1905
• Docket Number: 5,391
• Citation: 75 N.E. 13,36 Ind.App. 139
• Parties: TOWN OF KNIGHTSTOWN v. HOMER
• Court: Indiana Appellate Court

75 N.E. 13

36 Ind.App. 139

TOWN OF KNIGHTSTOWN v. HOMER

No. 5,391

Court of Appeals of Indiana

June 30, 1905

From Henry Circuit Court; John M. Morris, Judge.

Action by Pearl Homer against the Town of Knightstown. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

L. P Newby and Forkner & Forkner, for appellant.

Eugene Bundy and William A. Brown, for appellee.

OPINION

MYERS, P. J.

This was an action by appellee against appellant to recover for service rendered Jesse Swain, Dr. Stanley and appellee's minor son, smallpox patients, and for damages to property belonging to appellee, destroyed to prevent smallpox contagion in the town of Knightstown.

The facts as stated in the complaint, so far as material, are as follows: In the month of June, 1902, the appellee, her husband and one child were living in their home in the town of Knightstown, Indiana. During said month Jesse Swain, while at the livery barn of appellee's husband, Ed Homer became afflicted with a virulent and contagious disease known as smallpox. Appellant, by and through its health board, and through the orders and directions of the secretary of the said health board, and at the request of appellee's husband, directed that said Swain be taken to the home of appellee, which was done. As soon as said Swain was taken into appellee's home the appellant, by and through its health officers, quarantined appellee and her son in her home with said Swain, and compelled appellee to nurse said Swain, and refused to permit her or her said son to leave said home. Dr. Stanley, while attending said Swain, took sick at the home of appellee, and said health officer ordered, directed and demanded that said Stanley remain in said home of appellee, and ordered, directed and commanded appellee to take charge of said Stanley and nurse and wait upon him during his said sickness. Upon the order of said health officers, appellee did render and perform for said Swain services as a nurse, and nursed, cared for and waited upon him for a period of thirty days, and performed the same services for said Stanley for a period of thirty days, and that the services so rendered by appellee during said period of sixty days were reasonably worth $ 5 per day. Said services so ordered and commanded by appellant, and so performed by appellee, were services necessary to prevent the spread of said disease in said community, and were necessary to the preservation of the general health of the citizens of said town. Said Swain while at the home of appellee, from the effects of said disease, died. Said Stanley recovered. Immediately thereafter appellant's minor son became sick with said disease, which he contracted from said Swain solely by reason of said Swain's being confined and quarantined in appellee's home by appellant, and appellee was thereby compelled to nurse and care for said minor child, which services so rendered in nursing said child on account of said sickness were of the value of $ 50. After the recovery of appellee's said child, appellant, by order and command of Dr. O. H. Barrett, then secretary of appellant's local board of health, ordered its police to enter appellee's home and destroy by fire all the household goods, kitchen furniture and wearing apparel of herself and said son, together with all the draperies, carpets, window curtains, bed and bedding owned by the appellee, which was done by said appellant, as ordered, all of which was done because of the necessity then and there existing to preserve the general health of the citizens of said town, and to suppress and prevent the spreading of said disease among the people of said town and vicinity, and which was done as ordered by said secretary of said board of health. The goods so destroyed were of the value of $ 300. A bill of particulars of the goods so destroyed is made a part of the complaint. Judgment for $ 700 is demanded.

It appears from the record that a demurrer was filed to this complaint and overruled. The demurrer is not in the record, and we are not advised on what grounds the demurrer was filed. Appellant answered in two paragraphs. The first, a general denial. Appellee replied to the second paragraph of answer by general denial. The issues thus formed were submitted to a jury for trial, resulting in a verdict and judgment for $ 200 in favor of appellee.

Appellant's motion for a new trial was overruled. It appeals to this court and assigns errors: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling the demurrer to the complaint; (3) the court erred in overruling appellant's motion for a new trial.

A complaint tested for the first time in this court will be held good if it contains facts sufficient to bar another action for the same cause, although its averments may be objectionable for uncertainty and inadequacy, or for stating conclusions instead of facts, upon the theory that such facts or conclusions, strengthened by the verdict, are to be given the benefit of every reasonable intendment and doubt, even to the extent of supplying omitted facts, resulting as a natural sequence from the facts averred. But this rule does not obtain when the defect is a failure to aver some fact or facts essential to constitute a cause of action, or, from the facts averred, plaintiff's right to recover is clearly denied. Efroymson v. Smith (1902), 29 Ind.App. 451, 63 N.E. 328; Cleveland, etc., R. Co. v. Baker (1900), 24 Ind.App. 152, 54 N.E. 814; Bertha v. Sparks (1898), 19 Ind.App. 431, 49 N.E. 831; Evansville, etc., R. Co. v. Darting (1893), 6 Ind.App. 375, 33 N.E. 636; Brandis v. Grissom (1901), 26 Ind.App. 661, 60 N.E. 455; Stockwell v. State, ex rel. (1885), 101 Ind. 1; City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200, 60 N.E. 271.

By § 6718 Burns 1894, Acts 1891, p. 15, § 8, the trustees of each town in this State shall constitute ex officio a board of health for such town, and it is made the duty of such board to "elect a secretary, who shall be the executive officer of the board," and it is the duty of such board "to protect the public health, by the removal of causes of diseases, when known, and in all cases to take prompt action to arrest the spread of contagious diseases."

The complaint in the case at bar alleges that, at a livery stable belonging to appellee's husband, one Swain became afflicted with the disease of smallpox. Smallpox is a contagious disease, and by statute the town board was required to take immediate and active measures to prevent its spread. The party so afflicted was found in what may be termed a public place. The patient was ordered into the home of appellee by the "health officer" of the town. While it appears that this order was at the request of the husband of appellee, yet it does not appear that appellee was consulted, or had any information as to the condition or character of the disease with which Swain was afflicted until after he had been installed in her home, where her property, thereafter destroyed upon the order of the town health officer, was situated. The discovery of a contagious disease like smallpox in a thickly settled community like the town of Knightstown, Indiana, whether one or more cases, creates an immediate necessity for activity on the part of those charged with the duty of preventing its spread, and creates a liability on the part of the town to pay any necessary expense incurred by its health board, or, in the absence of an order of its health board, the expenses incurred by its "health officer" under such an emergency. Therefore, giving to the averments of fact stated in the complaint the benefit of every intendment and doubt, as authorized by the principles of law enunciated in the cases above referred to, the complaint states facts sufficient to withstand an attack after verdict, and for the first time on appeal.

No available error can be predicated upon the ruling of the court on a demurrer not copied into the record. Kahn v. Gavit (1899), 23 Ind.App. 274, 55 N.E. 268; Samples v. Carnahan (1898), 21 Ind.App. 55, 51 N.E. 425; Jones v. Mayne (1900), 154 Ind. 400, 55 N.E. 956.

Appellant's motion for a new trial contains many reasons in support thereof. We will only consider those by it discussed. (1) The verdict is not sustained by sufficient evidence. The bill of particulars filed with the complaint aggregates $ 450.15, of which $ 350 is for nursing the parties mentioned in the complaint, and the balance for property destroyed.

From the evidence it appears that on Thursday, May 29, 1902, and without objection on the part of appellee, and at the...