# Prichard v. Board of Commissioners of Morganton > Supreme Court of North Carolina · June 14, 1900 · 126 N.C. 908 URL: https://www.frixlaw.com/law-library/cases/9808797 ## Case - **Full name:** NANCY PRICHARD, Widow of Z. T. Smith, Et Al., His Children and Heirs-At-Law, by Their Next Friend, Nancy Prichard, v. BOARD OF COMMISSIONERS OF MORGANTON; BOARD OF COMMISSIONERS OF BURKE COUNTY; R. T. CLAYWELL and ROBERT ROSS - **Court:** Supreme Court of North Carolina - **Decided:** June 14, 1900 - **Citations:** 126 N.C. 908; 36 S.E. 353; 1900 N.C. LEXIS 336 - **Precedential status:** Published - **Opinion:** Dissent by Furches - **Judges:** Montgomery, Furches, Eaircloth - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9808797 ## How later opinions describe it (automated extraction) - stating that counties are “instrumentalities of [state] government . . . and they are not liable for damages in the absence of statutory provisions giving a right of action against them” ## Opinion text Furches, J., dissenting. The plaintiff Nancy Prichard alleges that she is the widow of Z. T. Smith, deceased, and that the other plaintiffs are the children and heirs-at-law of said Smith; that as such widow she was entitled to dower upon the lands of her said husband, which was laid off and assigned to her in a house and lot in tire town of Morganton, in which she and her family were living; that there were other buildings on said lot, and a growing crop of coin and a garden with vegetables growing therein; that besides these, *915 sbe owned and bad in said bouse clothing, bed clothing, tables ware and other domestic 'articles and furniture; that on or about tbe last of May, 1899, tbe defendants Robert Ross and R. T. Claywell, under tbe pretense that tbe plaintiff bad small-pox or bad been exposed to tbe disease of small-pox, and claiming that they were authorized to- do so> by an order of tbe Board of Commissioners of Morganton, sustained and .approved by tbe Board of Commissioners of Burke County, ■came to her bouse, arrested her, and carried her to a pest-house, set fire to and destroyed her bouse, and tbe other outhouses on the lot, and also burned and destroyed her clothing, ted clothing, table-ware and household furniturej when in fact sbe did not have small-pox, nor does sbe believe that sbe bad been exposed to that contagious disease. To recover damages for this treatment — the loss of houses and tbe loss and destruction of her personal property — she brings this action ■against tbe defendants, Robert Ross, R. T. Claywell, the Board of Commissioners of Morganton, and tbe Board of Commissioners of Burke County. To this complaint tbe defendants demurred, thereby admitting the facts stated in tbe complaint to be true. And taking these facts to be true, as we must do, it would seem that tbe plaintiff is entitled to damages from somebody. One ground of the demurrer is the misjoinder of causes of .■action — too many causes joined together in one action. But it appears that they all grew out of one wrongful act or are connected with the same, and that tbe complaint is not demur-rable on that account. Benton v. Collins, 118 N. C., 196 ; Solomon v. Bates, Ibid, 311. It is claimed in tbe demurrer that Ross and Claywell are not liable because they were only tbe agents and servants of the other defendants. Admitting that this defense can be raised by tbe demurrer in this case (which we do not admit), *916 it could not protect them, unless their employers had the right to commit this trespass upon the plaintiffs, and to destroy their property. And while this is so — must be so— the other defendants claim that they had no right to' order this trespass and destruction of property, and demand protection on that account. So it is manifest that both of these contentions can not be true, nor can both these defenses be good. This is sufficient to justify the Court in overruling the demurrer. But are the other defendants liable? The complaint alleges that this trespass and destruction of plaintiff’s property was done by order of the Board of Commissioners of Mor-ganton, sanctioned by the Commissioners of Burke County. But it is contended that they had no right to make such order, that it Was ultra, vires, and they are not bound by it. But it is provided in chap. 120, sec. 37, Private Laws 1885 (charter of the town of Morganton) : “That the Board of Commissioner's may take such means as they may deem effectual to prevent the entrance into the town or the spreading therein of any contagious or infectious diseases, * * * may cause any person in the town believed to be infected with such contagious’ disease or whose stay may endanger the public health, to be removed to some place within or without the town limits, may cause -to be disinfected or destroyed such furniture or other articles which shall be believed to be tainted or infected with any contagious or infectious disease, or of which there shall be reasonable cause to apprehend will generate or propagate diseases, and may take all other reasonable steps to preserve the public health, and for this purpose may use any money in the treasury.” It would be very hard to believe that the draftsman of this act did not think he was giving the Commissioner’s of Morganton plenary power to deal with contagious diseases; *917 and it seems that they so understood it when they made this order, as it appears from the complaint that they have had the plaintiff’s damages assessed at $100, and have offered to pay plaintiff that amount. But it is contended that the Commissioners were limited to that amount. This can not be so — that the act authorized the Commissioners to destroy property and limited the plaintiff’s damages to' $100, or any other amount less than the value of the property destroyed. If this contention of defendants were true, it would allow the defendants to assess their own damage. This can.not be so. It is further contended that this .act does not extend to the destruction of houses. I do not agree to this contention. If that were time, what becomes of damage for her clothing, the heel clothing, table-wareand other articles of household furniture destroyed? Has the plaintiff no remedy for this trespass and destruction of properly ? I can not so hold. As there was no statute called to our attention that authorized the County Commissioners to destroy property in Mor-ganton, it is probable that they are not liable. The demurrer should have been sustained as to them, but was properly overruled as to the others. This was written as a tentative opinion; and, although the opinion of the Court has been modified since it was written, it is filed as a dissenting opinion. EaiRCLoth, C. J. I concur in the dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9808797. Public record. Not legal advice.