Mitchell v. City of Rockland , 41 Me. 363 ( 1856 )

Tenney, C. J.

It is not in controversy, that the Caroline, owned by the plaintiff, came into the port of Rockland at the time alleged in the writ, having on board a man sick with the small pox, a malignant disease, of which he died a few days afterwards; that subsequently to the death and the removal of the body from the vessel, the person, who had some agency on board, connected with the sickness of the person deceased, under the health officers of the city, kindled a fire in a kettle, which he placed on a flat stone, lying upon the cabin floor, and caused to be burned in the kettle, brimstone, pieces of leather and old rope, for the purpose of fumigating the vessel and preventing the spread of the disease; that very soon after the fire in the kettle was kindled, the vessel was found to be on fire, and material injury was done thereto. From what source the' fire communicated with the vessel, was a question for the jury.

The jury were instructed, that if the health officers of the city of Rockland, as such, took possession and control of the vessel, and having such possession, a fire by which the vessel was injured, was occasioned by the want of ordinary care of such officers of the city or their servants, the city would be liable for losses thereby occasioned. And it was found by the jury, in addition to the general verdict for the plaintiff, that the officers of the city of Rockland did take the exclusive control and possession of the Caroline, and that the injury to the vessel was occasioned by the neglect of the officers of the city or their servants.

It does not appear that any evidence was introduced, tending to show that the city, as such, authorized the acts complained of by the plaintiff, or that they were done in pursuance of any general authority from the city to act therefor; or that the acts were expressly ratified by the corporation. But it is insisted in argument, that the allowance and payment of the bill of the person who kindled the fire in the kettle, and who had had the charge of the sick man on board the vessel, which was in testimony, was a subsequent ratification of the acts of the health officers.

But the statute is invoked as authority to the health officers, for their acts, which it is insisted by the plaintiff’s counsel, renders the city responsible.

It is a general rule, that the corporation is not responsible for acts of its officers, which are unauthorized or unlawful. Thayer v. Boston, 19 Pick. 511.

The statute relied upon by the plaintiff provides, that whenever the selectmen of any seaport town within this State, shall be of the opinion that the safety of the inhabitants thereof requires that any vessel, which shall arrive there from any port or place, should perform quarantine, they may cause such vessel to do so, at such place, and under such regulations as they may judge expedient. And any owner, master, supercargo, officer, seaman, passenger, consignee, or other person, who shall neglect or refuse to obey the orders or regulations of the selectmen, respecting said quarantine shall incur a penalty in money, or suffer imprisonment, or both. And a health committee, or a health officer, legally chosen, may perform all the duties, and exercise all the authority, which selectmen may perform or exercise, in requiring vessels to perform quarantine, under the provisions of the statute referred to. R. S., c. 21, § § 20, 21 and 22.

The general definition of the word quarantine, in law, is the term of forty days, during which persons coming from foreign ports, .with the plague, are not permitted to land or come on shore. 5 Jac. Law Dict. 362. The word has been enlarged and modified in its signification by statutes. The restriction against the coming on shore of persons on board of vessels, arriving in port, is applied to vessels having on board other contagious sickness than that of the plague. But no authority has been found, which allows health officers, by virtue of their power, to cause quarantine to be performed, ex vi termini, to take the vessel in which such contagious disease is found, into their own possession and control, to the exclusion of the owner, or those whom he has put in charge.

The language of the statute requires, that the vessel shall perform quarantine, in the cases prescribed, and all having connection with the vessel, as owner, master, &c., are required to comply with the regulations of the selectmen or health officers. This clearly implies, at least, that the owner, and those having possession and control of a vessel under him, shall not be divested of this control and possession by those municipal officers. The statute relied upon by the plaintiff, having given no such authority to the health officers of the city of Rockland, (even if they had taken the steps required by the statute to cause the vessel to perform quarantine,) to take the exclusive control and possession of the Caroline, the city cannot by the statute alone be held responsible for their acts.

The testimony relied upon by the plaintiff, to prove a ratification by the city of the acts of the health officers, which were not authorized by the statute, does not appear from the case to have been passed upon by the jury. It was a question for their exclusive determination. The right of the plaintiff to recover was made to depend, by the instructions to the jury, upon the facts, that the health officers of the city took possession and control of the plaintiff’s vessel; and, while in such possession, a fire caused an injury thereto through the want of ordinary and common care of those officers, or their servants. These instructions,' unqualified as they were, are regarded as erroneous.

The conversation between the witness Mansfield and Aider-man Wiggin, while the vessel had on board the man sick with the small pox, being received against the objection of the defendants, we think was also erroneous. Wiggin was not one of the board of health of the city of Rockland. He was an alderman only. He did not represent the board of health or the city government, and the corporation could not be legally affected by Ms declarations or acts, when he was not acting in behalf of either. Exceptions sustained—

Verdict set aside, and New trial granted.

Hathaway, Appleton, Cutting, and May, J. J., concurred.