Bodewig v. City of Port Huron

141 Mich. 564 | Mich. | 1905

Ostrander, J.

(after stating the facts). The main brief for appellant discusses the single proposition that the city is not liable for the tortious acts of its health officer, and the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), is cited and relied upon.

The defendant had the power — indeed, it is by the charter made a duty — to provide a pesthouse or hospital. It made use of the premises of the plaintiff for a hospital. Its liability and duty to pay for such use such sum as under the circumstances is reasonable is not denied. This liability is not diminished by the fact that the city obtained possession of the premises by the trick or trespass of an officer or agent of the city. The single question is whether the declaration can be held to support the judgment. The first count of the declaration may be .said to be in case, since the damages alleged are consequential. The second count is the common-law count in trespass for a common expulsion. 2 Chitty on Pleading, 865. The third count avers a trespass, with both direct and consequential re-suiting injury. The case of the plaintiff as pleaded is a case of tortious entry into and wrongful use of real estate, whether we regard the allegations of forcible entry and expulsion or the particular use to which the premises were devoted. It is not a declaration admitting plea or notice of set-off. And the recovery, limited though it was, is not merely for the loss of rents and profits, an element of damages properly recoverable as resulting from the wrongful expulsion of plaintiff from the premises. Such damages would be in no way dependent upon the fact that defendant made use of the premises. The proofs show the rental value of the premises to have been not more than $7 per month. The recovery is at a rate nearly three times as large. It is not claimed that the city of Port Huron directed or authorized the trespass complained of, nor that it ratified the tortious act of the health officer, although it had the benefits of what he did. So that, upon his own theory and practice, and the proofs, plaintiff has recovered a judgment against the city of Port Huron for damages resulting from the claimed and alleged tortious conduct of the health officer of the city. In this view of the case it is within the ruling in Murray v. Village of Grass Lake, 125 Mich. 2.

The judgment is reversed, with costs, and a new trial granted.

Moóre, C. J., and McAlvay, Grant, and Blair, JJ., concurred.