October 1, 2012

Pulaski County v. City of Somerset, Pulaski, 1907



98 S.W. 1022; 1907 Ky. LEXIS 387; 30 Ky. L. Rptr. 387

January 11, 1907, Decided

Appeal from Circuit Court, Pulaski County. "Not to be officially reported." Petition by Pulaski county against the city of Somerset for the recovery of certain money paid the city by mistake. From a judgment, dismissing plaintiff's petition and defendant's counterclaim, both parties appeal.

DISPOSITION: Affirmed on both appeal and cross-appeal.

COUNSEL: T. Z. Morrow, for appellant.

O. H. Waddle & Son, for appellee.




 [*1022]  NUNN, J. - In the year 1900 an epidemic of smallpox existed in the county of Pulaski, within and without the city of Somerset, which was a city of the fourth class. Both the county and city had a board of health appointed as required by statute. The fiscal court of the county, under direction of the county board of health, had erected a pesthouse outside of the city limits, in which it intended to treat and care for those afflicted with the disease. The state board of health, by its chairman, condemned this house as unfit for such purpose. There arose a conflict of opinion between those residing in the city and those living without as to whether the county or city should bear the expense of treating and guarding the persons afflicted. Some time during that year there was a meeting of the  [**2] members of the fiscal court of the county and the members of the city council, together with the members of both boards of health. At the meeting it seems that there was an agreement between all parties that the county and city, through their proper boards, should jointly provide means and care for all persons afflicted with contagious diseases, and to provide guards so as to prevent the spread of the disease; and the county court passed a resolution, which was spread upon the order book of the county, in which it was provided that they would make an appropriation to cover or pay for one-half of the reasonable, necessary, and legal expense in securing pesthouses or hospitals, furnishing the same with necessary furniture, beds and bedding, fuel and lights, food and clothing, and medical attention for such of the inmates as were destitute, and guards for same.

By the combined efforts of the boards of health, aided by the fiscal court, and the city council, the epidemic referred to was stamped out of both the city and county; and in the month of March, 1901, the fiscal court of Pulaski county made an order allowing the city of Somerset $ 949.50, which was stated in the order to be one-half  [**3] of the reasonable, legal, and necessary expense incurred by reason of the existence of smallpox in the city and county, and this sum was paid to the city under this order. Some time after this, it appears that the city concluded that the county was responsible for the whole of the expense so incurred, and instituted an action against the county for the whole of the claim, which it claimed to be $ 3,300, crediting it with the $ 949.50, which it had received under the order referred to, and asked judgment for the balance of the claim. It appears that this action was dismissed, but for what reason is not shown in this record. After that it appears that the county concluded that the city was responsible for the whole of the expense so incurred, and filed the petition in this case; setting forth, in substance, the  [*1023]  facts as related and claiming that the city was responsible for the whole expense; and that it had paid to the city the $ 949.50 by mistake, and sought to recover it. The city answered and claimed that the county was responsible for the whole and, if not responsible for the whole, it was responsible for at least one-half of the $ 3,300, under the agreement above recited; and that  [**4] the county still owed it $ 700.50, its one-half of the expense incurred, and asked a judgment over against the county for that sum. The county controverted this. Upon the trial of the case in the lower court, and after the appellant introduced its evidence, the court, on motion of the appellee, dismissed the petition, and also appellee's counterclaim, and both parties have appealed.

Under the statute with reference to the question involved, as construed by this court in the case of Blair v. City, 67 S. W. 16, 23 Ky. Law Rep. 2253, and the case of Bell County v. Blair, 50 S. W. 1104, 21 Ky. Law Rep. 121, there is no doubt that both the city and county are responsible for the expense; the city for that incurred in treating those so afflicted within the city limits; and the county for that in treating those so afflicted without the city. The proof in the case shows that there were cases of smallpox both within and without the city, possibly more cases within the city than without. There is no allegation in the plaintiff's petition, nor any proof showing that the $ 949.50, paid by the county, was any greater sum than it would have cost the county to have treated the cases within the county  [**5] and without the city; but the evidence tends to show that there was a saving of expenses to both the county and city by the joint efforts of both in the suppression of the disease.

The appellee, under its proof, did not make out a case against the city, and the court properly dismissed its petition. The city complains because the court refused to allow it a judgment against the appellant for $ 700; even conceding that the county was responsible, under its agreement, for one-half of all the expense incurred in stamping out the disease, the appellee did not show, by proof, that the $ 949.50, paid by the county, was less than one-half of the actual and reasonable expense incurred. The county did not agree to pay one-half of any claim that the city might present. The proof shows that the claim presented by the city to the fiscal court only amounted to about $ 2,400; and a member of the fiscal court testified that the county had paid some of the expense incurred outside of the city; and that many items of the claim, as presented, were unjust and unreasonable; and that the fiscal court examined each item of the claim presented, and the court allowed one-half of the reasonable and necessary  [**6] expense. There was no contradiction of this proof introduced; and therefore the court properly dismissed the counterclaim of appellee.

For these reasons the judgment of the lower court is affirmed on both the appeal and cross-appeal.

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