Creier v. Fitzwilliam

83 A. 128, 76 N.H. 382, 1912 N.H. LEXIS 57

• Court: Supreme Court of New Hampshire
• Decided: April 2, 1912
• Status: Published

Opinion

Walker, J.

The plaintiff cannot recover of the town for the care furnished by his wife to the patient, because she was not employed by the health officer in charge of the case and the board of health has not decided that any part of this expense should be “deemed a legitimate expenditure for the protection of the public health.” Laws 1899, c. 100, ss. 1, 2; Pettengill v. Amherst, 72 N. H. 103.

When the officer destroyed the infected bedding he was not acting as the agent of the town, but as a public officer under legislative authority, for the benefit and protection of the public. He was as much a public officer as highway surveyors, police officers, and firemen (Brown v. Vinalhaven, 65 Me. 402; Barbour v. Ellsworth, 67 Me. 294; Ogg v. Lansing, 35 Ia. 495), for whose act while in the discharge of a public or governmental duty, even if wrongful, the town is not responsible, in the absence of a statute making it responsible therefor. Edgerly v. Concord, 62 N. H. 8; Rhobidas v. Concord, 70 N. H. 90; O’Brien v. Derry, 73 N. H. 198; Gates v. Milan, ante, 135. As no statute has been found making towns liable for property destroyed by health officers, the plaintiff cannot recover for this item of his specification.

Exception overruled.

All concurred.