28 Wash. 345 | Wash. | 1902
Tlie opinion of tire court was delivered by
— This action was brought by respondents against appellants. The respondents allege that they were the owners of a certain lot in the city of Tacoma, which was at the time of the acts complained of reasonably worth $200, and that a dwelling house thereon was worth tire additional sum of $1,200. It is alleged in the complaint that the appellants, through their respective health officers, and without the consent of respondents, seized and appropriated said lot and building for the purpose of using them as a pesthouse for the isolation and quarantining of certain persons in said city and county who were afflicted with small-pox; that in pursuance of such purpose the appellants, through their officers and agents, caused persons SO' afflicted to be removed into and upon said property,
It is assigned as error that the court overruled the demurrers to the complaint. It is urged that the complaint does not state a cause of action for the recovery of real property, for forcible entry or forcible detainer, to quiet title, for the collection of rent, for waste, trespass, or nuisance, or upon a contract for sale or purchase, and, in short, that no cause of action whatever is stated. While the action may not come strictly within any of the classifications above, yet we think a ground of recovery is sufficiently stated. The respondents do not question the right
It is assigned as error that the court denied motions for a non-suit made by each appellant at the close of respondents’ testimony. Both appellants urge the motions, but it is vigorously urged by the county that its motion in particular should have been granted. The evidence showed that the building used was an old, vacant, and dilapidated one, which had been unoccupied for a long time, and that Dr. Schug, as city health officer of the city of Tacoma, was notified of a case of smallpox in the city, and sent his assistant to look for a place to quarantine and care for the patient; that the assistant found this vacant house, and was authorized by Dr. Schug to^ take possession and fix it up for said purpose. The patient was afterwards taken there, as were also others. The action of Dr. Schug was after-wards fully ratified by the city board of- health in open session. Dr. Ilelliker attended the patients at this house, and he was the county physician. He also testified that he was county health officer; but he says tlie possession of the house in question was taken by authority of the city health- officer, and that he was afterwards directed by such city officer to go there and attend the patients. He further says that he had no authority from the county
It is further assigned that the court erred in overruling an objection to the introduction of a memorandum made by a health officer of the city of Tacoma, for the reason that it was incompetent, as against the appellant county, and, further, that it was not made from facts within the knowledge of the officer. The evidence was, however, afterwards stricken by the court, and the error was thereby cured.
Error is assigned upon the testimony as to the amount respondents are entitled to recover, and upon the court’s instruction thereon. The building was destroyed by fife, but not by the authority of either appellant. When its use as a quarantine station was discontinued, it was fumigated and left standing, but was soon afterwards burned by some unknown person. Respondents’ theory, as before stated, is that the value of the use is the whole value of the property, because no one would be willing to occupy it, notwithstanding its fumigation. The testimony of respondents was directed to the value of the property upon that theory, and was not directly limited to the value of its use in terms so called. Appellants also confined their evidence to the value of the property, and offered no different evidence as to' the value of its use. The court instructed the jury as follows:
*352 “The measure of damages in a case of this kind would he and will he what you believe from the evidence would he the fair and reasonable rental value of that property for the purpose for which it was taken and used. It is what damage the property sustained by reason of having been used for a pesthouse. And yon must arrive at tlio measure of damages — ascertain the measure of damages— from the evidence, not from any preconceived notions of your own, but from the evidence brought out upon the trial, and from that come to yonr conclusion.”
In view of the theory under which respondents’ testimony was introduced, and also in view of appellants’ testimony, we think the instruction was proper.
It is assigned that the court erred in refusing certain requested instructions, to the effect that before the jury could find against the appellant county they must find that the acts of Dr. Ilelliker in connection with taking possession of the property were expressly authorized by the hoard of county commissioners, or that such acts were subsequently ratified by them. As before stated, Dr. Ilelliker testified that he was the qualified health officer of the county; and if he was, we think, under the exigency calling for immediate action, he had sufficient power to act without express authorization by the hoard. The testimony was given without objection. The affidavits of the county commissioners in support of the motion for new trial state that Dr. Helliker was appointed as county physician only, and that he was never appointed health officer; hut no reason is shown for not having introduced evidence upon this subject at the trial, and the evidence stands in the record that he was not only appointed hv the coruity commissioners as county health officer, hut that he also qualified as such. We think the intention of § 2983, Bah Code, is to confer general and discretionary power upon county health officers in the premises;
Since we find no material error, the judgment is affirmed.
Reavis, C. J., and Fullerton, Anders, White, and: Mount, JJ., concur.