Brown v. Inhabitants of Vinalhaven , 1876 Me. LEXIS 78 ( 1876 )

Barrows, J.

If the action cannot be maintained upon the facts alleged in the writ, the plaintiffs are to be nonsuited, otherwise the case to stand for trial.

The writ sets forth the breaking out of the small pox in the defendant town, refers to the statute provisions touching the powers and duties of towns and town officers relative to the establishment of hospitals, the regulations to be observed by physicians and nurses and others exposed to infection, and the care to be taken to prevent the spread of malignant and contagious diseases ; recites the employment of one Conway as a nurse by the selectmen of the town, his reception into a pest house by order of the selectmen, and a physician employed by them in behalf of the inhabitants of the town ; and alleges in substance that he was carelessly and negligently thereafterwards permitted by them to return, without being properly cleansed and disinfected, to the house which he formerly occupied, of which the female plaintiff was an inmate; and so she contracted the disease to her great injury, suffering and loss, all which matters and things are circumstantially set forth.

The plaintiffs base their claim upon the mistaken idea that the selectmen, in the performance of the duties imposed upon them by the statutes in such cases, sustain to the town by whom they are elected, the relation of a servant to his master or an agent to his principal, and that the rule respondeat superior applies, if they conduct themselves carelessly or unskillfully. It is not pretended that the statute gives a remedy against the town to any one injured by reason of the negligence, ignorance or inefficiency of the town officers or those employed by them in these matters. By c.14, § 10, the town is required to pay a just compensation to parties interested when the proper officer upon due proceedings had, impresses or takes up any houses, stores, lodging or other necessaries, or impresses any man, under the provisions of the chapter. But beyond this, as to any liability of the town for the doings, misdoings, or omissions of its officers in the performance of the duties imposed upon them by law, the statute is silent.

The liability of a town upon contracts made within the scope of their authority, about the affairs of the town by such of its officers as are also its agents is unquestionable. But its responsibility for the torts or neglects of its officers in the performance of duties imposed upon them by law has never been affirmed, unless created by express statute provisions. On the contrary, the distinction between “corporations created for their own benefit” and “quasi corporations created by the . legislature for purposes of public policy,” in respect to their liability for such wrongs and neglects, was long since declared in our parent commonwealth in the case of Mower v. Leicester, 9 Mass., 247, and we believe has never been overlooked by our own court. Adams v. Wiscasset Bank, 1 Maine, 361. The principle which must be decisive of this case was so fully discussed in Mitchell v. Rockland, 52 Maine, 118, that a reference to that case and the authorities there cited, seems to be all that is necessary. Plaintiffs nonsuit.

Appleton, C. J., Walton, Dickerson, Daneorth and Libbey, JJ., concurred.