Valentine v. City of Englewood

Citation71 A. 344,76 N.J.L. 509
PartiesVALENTINE v. CITY OF ENGLEWOOD et al.
Decision Date16 November 1908
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Error to Supreme Court.

Action by Daniel W. Valentine against the City of Englewood and others. Judgment for defendants, and plaintiff brings error. Affirmed.

The declaration contains counts in trespass quare clausum fregit, for false imprisonment, and for libel. The defendants plead in justification that there were 30 cases of scarlet fever in the city of Englewood, and that the board of health had reasonable and probable cause to believe that the plaintiff's daughter was ill of the disease, and thereupon caused the plaintiff to be notified that they had declared his house quarantined, and that he had the option to place his child and her attendant in strict quarantine in a separate room, and to have the contents of the house fumigated by the board of health, or to have the entire house and occupants quarantined. The replication denied that the board of health had reasonable and probable cause to believe that the plaintiff's daughter was suffering from scarlet fever, and tendered issue thereon.

At the trial, upon the plaintiff's opening that the board of health acted without any authority at all of the city, a nonsuit was ordered in favor of the city of Englewood. The case proceeded against the board of health and the individual defendants.

The evidence showed that the city physician, one of the defendants, reported to the board of health a case of scarlet fever at the plaintiff's residence; and that at a consultation between Dr. Currie, of Englewood, and Dr. Bulkley, of New York City, the two latter stated that the case was not scarlet fever; that four local physicians were of opinion, from a statement of symptoms and without seeing the patient, that the case was scarlet fever. The city physician informed the plaintiff, at first by verbal notice, that the house was to be quarantined, and apparently gave the plaintiff the option to have a strict quarantine of the whole house established, or a quarantine of his daughter and her attendant in one room of the house. The plaintiff, in order to secure proof as to who was responsible, demanded a written notice; and thereupon such a notice was served, signed by the secretary of the board of health, in which the option of having the child and her attendant quarantined in a separate room, or of having the entire house and occupants quarantined, was again given to the plaintiff. He declined to avail himself of the option, a card was placed upon his office door indicating that there was scarlet fever on the premises, and measures were taken by the board of health to fumigate the house. There seems to have been nothing further done by way of enforcing the quarantine. When the plaintiff was asked what kept him in quarantine, what was done, and who did it, his only answer was that the health inspector came and fumigated the house.

The board of health had adopted ordinances, pursuant to the statute, providing that persons affected by certain diseases, of which scarlet fever was one, should be isolated, quarantined, or removed to such a locality as the board might order and direct; and that buildings and property, which might become infected, should be disinfected or destroyed; and that the board might establish such separation and isolation or domestic quarantine of the sick from persons not necessary as attendants as should be needed in order to prevent the spread of the disease.

Adolph L. Engelke, Harry B. Brockhurst, and Peter W. Stagg, for plaintiff in error.

Albert C. Wall and Charles W. Hulst, for defendants in error.

SWAYZE, J. (after stating the facts as above). We find it convenient to deal first with the liability of the city of Englewood.

The precise question involved is new in this court. In Kehoe v. Rutherford, 74 N. J. Law, 659, 65 Atl. 1046, there was active wrongdoing by the municipal authorities in collecting surface water and discharging it so that it injured the plaintiff's land, but that act was the act of the corporation itself for a special corporate purpose. A distinction is made in the cases in other jurisdictions between such acts and acts done in performance of a governmental function in execution of powers of a public and general character, delegated to the municipality for the welfare and protection of its inhabitants or the general public. Of the numerous cases collected in 28 Cyc. 1257, it will suffice to refer to Daly v. New Haven, 69 Oonn. 644, 38 Atl. 397; Colwell v. Waterbury, 74 Conn. 568, 51 Atl. 530, 57 L. R. A. 218; Hourigan v. Norwich, 77 Conn. 358, 59 Atl. 487; Hafford v. New Bedford, 16 Gray (Mass.) 297; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Manners v. Haverhill, 135 Mass. 165; Clark v. Easton, 146 Mass. 43, 14 N. E. 795; Maxmilian v. Mayor, etc., of New York. 62 N. Y. 160, 20 Am. Rep. 468. These cases have been followed by our Supreme Court in Tomlin v. Hildreth, 65 N. J. Law, 438, 47 Atl. 649. A more recent case is Cunningham v. Seattle, 42 Wash. 134, 84 Pac. 641, 4 L. R. A. (N. S.) 629; 7 Am. & Eng. Ann. Cas. 805, in a note to which numerous cases as to the nonliability of a municipality for acts of its firemen are collected.

The principle has been frequently applied to the acts of boards of health. Summers v. Daviess County, 103 Ind. 262, 2 N. E. 725, 53 Am. Rep. 512; Mitchell v. Rockland, 52 Me. 118; Nicholson v. Detroit, 129 Mich. 246, 88 N. W. 695, 56 L. R. A. 601; Bryant v. St. Paul. 33 Minn. 289, 23 N. W. 220, 53 Am. Rep. 31; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983. It seems to be founded in reason.

The acts complained of by the plaintiff were in performance of a governmental function imposed upon the board of health by the Legislature, under a special statute relating to boards of health, for the benefit of the public at large. The duty was quite independent of any provisions of the city charter, and was in no way for the benefit of the city in its corporate capacity, or as the owner of property. The only connection, under the statute, between the city and the board of health, is that the members of the board of health are appointed by the governing body of the city. This, however, did not make them the servants or agents of the city; they were public officers, notwithstanding the method of their appointment. Hafford v. New Bedford, 16 Gray (Mass.) 297; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Murphy v. Inhabitants of Needham, 176 Mass. 422, 57 N. E. 689; Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160, 20 Am, Rep. 468; Felch v. Weare, 69 N. H. 617, 45 Atl. 591.

The city could only be held by applying the rule respondeat superior, and that rule has no application in a case where the persons who commit the act complained of are neither the servants nor agents of the municipal corporation, nor acting in the performance of any corporate duty. So far as their act is outside the limits of the corporate duty of the municipality, it cannot be considered the act of the municipality. 2 Dillon (3d Ed.) §§ 968-974. The case is not altered by the fact that the court excluded the question whether the records of the common council showed any action on their part in regard to the quarantining of the plaintiff. At that time the nonsuit had already been ordered, and nothing was said to indicate that the offer was to show anything that would conflict with the statement of plaintiff's counsel in his opening that the board of health acted without any authority from the city. It is not necessary, therefore, to consider whether the liability of the city would have been different if express authority had been shown. The evidence, moreover, becomes quite immaterial in view of other considerations to be stated.

No liability of the city was shown, and in that respect the nonsuit was right.

The statute creating the board of health authorizes it to adopt ordinances to prevent the spreading of dangerous epidemics or contagious diseases, and to maintain and enforce sufficient quarantine when it deems necessary. Gen. St. 1895, p. 1644, § 49. The board is required by section 13 to examine into all causes of disease injurious to the health of the inhabitants, and to cause the same to be removed and abated. Section 15 enacts that no suit shall be maintained in any of the courts of this state to recover damages against any such board, its officers or agents, on proceedings had by them to abate and remove a cause of disease, unless it shall be shown in such suit that the cause of disease did not exist, was not hazardous and prejudicial to the public health, and that the board acted without reasonable and probable cause to believe that such cause was in fact prejudicial and hazardous to the public health.

The evidence in the present case justified an inference on the part of the jury that scarlet fever did not in fact exist; and, as the trial judge nonsuited the plaintiff, his ruling cannot be vindicated, if the actual existence of the disease is essential to the justification of the defendants. The issue joined upon the pleadings was only whether there existed reasonable and probable cause to believe that the defendant's daughter was sick with scarlet fever, but it would be taking too narrow a view of the case to decide it upon this question of pleading only. We prefer to rest the decision upon broader grounds.

In the case of American Print Works v Lawrence, 21 N. J. Law, 248, and on appeal 21 N. J. Law, 714, 47 Am. Dec. 190, and 23 N. J. Law, 590, 57 Am. Dec. 420, it was held in the Supreme Court, in a very able opinion by Chief Justice Green, that the defendant, who, as mayor of New York City, had destroyed real and personal property in order to stop the spread of a great fire, was not to be held responsible, since he acted in pursuance of a duty imposed upon him by statute, and not for private emolument or for his individual...

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