O'Brien v. Stromme

169 P. 36 | Mont. | 1917

MR. JUSTICE SANNER

delivered the opinion of the court.

The complaint alleges that the appellant, being afflicted with smallpox, was taken to the pesthouse maintained at or near Butte for the accommodation of such cases by the Silver Bow county board of health; that.while in delirium from the disease and because of the board’s failure to provide sufficient guards, he escaped on a very cold winter’s night and so froze his feet that amputation of several toes became necessary, and for which he claims damages. He was nonsuited at the trial and seeks by these appeals to present the question whether the members of the board are liable.

Conceding that if, in arranging to care for matters of this kind, the board ants judicially or gitasi-judicially, no liability for [1] mere mistakes of judgment would exist, appellant insists that the respondents are liable upon the theory that the duties of the board in the premises are ministerial, and for negligent nonfeasance or misfeasance the members must answer to whomsoever is injured thereby. Whether this be correct we may not here decide because the record does not show negligence or any injury due to negligence. It is true that practically all the evidence offered by the appellant for that purpose was excluded upon objection — why, we do not entirely understand; but since no question is made of the correctness of these rulings, we may not import into the record what the appellant did not prove. No more than anyone else can public officers be held to respond for injuries until it is shown that their fault is the proximate cause of such injuries.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.