O'Brien v. Stromme

County Officers — Negligence — Evidence — Insufficiency — Non-suit. 1. Where substantially all the evidence offered by plaintiff in an action against a county board of health for negligence in looking after his welfare while a patient in the county pesthouse was excluded upon objections the rulings upon which were not questioned, leaving no evidence to show negligence or injury due to negligence on the part of the board, a judgment for nonsuit was proper.

Appeal from.District Court, Silver Bow County; J. J. Lynch, Judge. Action by Peter 0 ’Brien against Gus Stromme and others, as members of the county board of health. Judgment of nonsuit and plaintiff appeals. Where a duty which is purely ministerial is violated or negligently performed by a public officer, the party injured thereby may have redress by action. (Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463, 53 Am. Dec. 316; State v. Ruth, 9 S. D. 84, 68 N. W. 189; Brown v. Lester, 13 Smedes & M. (21 Miss.) 392; Bennet v. Whitney, 94 N. Y. 302; Tose v. Reed, 54 N. Y. 657.) The board of health and the health officer were acting as ministerial officers in this matter. (McCord v. High, 24 Iowa, 336; Wilson v. Marsh, 34 Yt. 352; Beers v. Board of Health, 35 La. Ann. 1132, 48 Am. Rep. 256; Brown v. Murdock, 140 Mass. 314, 3 N. B. 208.) That the officer in question is one who acts judicially or quasi-judicially is not conclusive, for such officers may be and are frequently called upon to perform ministerial acts, and as to such acts, they are governed by the same rules which control ministerial action in other cases. (Mechem on Public Officers, 444; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Thompson v. Holt, 52 Ala. 491; People v. Provines, 34 Cal. 520; People v. Bush, 40 Cal. 344; McCord v. High, 24 Iowa, 336.) The respondents, acting as the county board of health, in so far as any question involved herein is concerned, were not acting in any ministerial capacity, but clearly in a quasi-judicial capacity (Garff v. Smith, 31 Utah, 102, 120 Am. St. Rep. 924, 86 Pae. 772; Smith v. Zimmer, 45 Mont. 282, 125 Pae. 420), and could not be held responsible, unless they acted intentionally, willfully and corruptly. (Fath v. Koeppel, 72 Wis. 289, 7 Am. St. Rep. 867, 39 N. W. 539; Spalding v. Vilas, 161 U. S. 483, 40 L. Ed. 780, 16 Sup. Ct. Rep. 631; Chamberlain v. Clayton, 56 Iowa, 331, 41 Am. Rep. 101, 9 N. W. 237; Bailey v. Berkey, 81 Fed. 737; Ballerino v. Mason, 83 Cal. 447, 23 Pae. 530; State v. Thomas, 88 Tenn. 491, 12 S. W. 1034; Kendall v. Stokes, 3 How. (44 U. S.) 87, 11 L. Ed. 506; Daniels v. Hathaway, 65 Vt. 247, 21 L. R. A. 377, 26 Atl. 970; 23 Am. & Eng. Ency. of Law, 2d ed., 375; 29 Cyc. 1444 ; 5 Thompson on Negligence, secs. 5785, 5826.) In the case of Bohn v. Osmun, 143 Mich. 68, 5 L. R. A. (n. s.) 635, 106 N. W. 697, a health board possessing discretionary powers as to the care of patients having contagious diseases and the furnishing of nurses was sued for damages. It was held that no recovery could be had. (See, also, Allison v. Cash, 143 Ky. 679, 137 S. W. 245; Kirk v. Board of Health, 83 S. C. 372, 23 L. R. A. (n. s.) 1188, 65 S. E. 387; Beeks v. Dickinson County, 131 Iowa, 244, 9 Ann. Cas. 812, 6 L. R. A. (n. s.) 831, 108 N. W. 311; Valentine v. City of Englewood, 76 N. J. L. 509, 16 Ann. Cas. 731, 19 L. R. A. (n. s.) 262, 71 Atl. 344; Dillon on Municipal Corporations, sec. 277.)