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. General Medical Officer


Report for Week Ending March 15, 1913.




On February 25, 1913, another decision in favor of the Department of Health of far-reaching importance in upholding the legality of the present methods of dairy inspection, was handed down by the Court of Appeals. A dairyman outside The City of New York had sued the Chief of the Division of Food Inspection for damages sustained through his official action in notifying a creamery company not to include the plaintiff's milk in its shipments to the City, the officer in question having acted on the report to his department by its inspectors that the conditions of the plaintiff's dairy were insanitary. This complaint was dismissed in the Supreme Court of Delaware County about two years ago. The plaintiff then appealed. The decision of the Court of Appeals, which follows, was written by Justice Gray, all the other justices concurring. It sustains the right of the Department of Health to prevent shipments from the country into the City of milk produced under insanitary conditions at the dairy, and also points out that an action for injuries resulting from proceedings by the Department of Health or its officers in the proper performance of their duties must be brought against the City. The full decision follows:

Decision. The plaintiff claims damages from the defendant for having, as he alleges, trespassed upon "his property rights.” The plaintiff, being engaged in dairy farming and being a member of a creamery company, complains that in the year 1909 the defendant, through his agents and employees wrongfully and unlawfully entered upon his premises and interfered with his business. More particularly he alleges that on December 6, 1909, "the said defendant, assuming to be a public officer and chief of the division of sanitary inspection of public health, and assuming to have the power and authority to prevent the sale of milk supplies in The City of New York * * unlawfully and wrongfully * * stopped the delivery of plaintiff's milk product to the creamery,

* ordered and directed said creamery company not to receive the milk of said plaintiff; and, further, directed that if said creamery company did receive the same, the right to dispose of said product in The City of New York would be stopped and the permit, or license, to sell the same would be revoked, and that * * because of such directions and threats, so made by said defendant assuming to act as said chief of division of sanitary inspection, said plaintiff was obliged to and did discontinue the delivery of his dairy product to said creamery." The answer of the defendant, not admitting all that was alleged against him, in substance, justified what action he may have taken in the premises, as having been done "as a health officer of The City and State of New York, in good faith and on behalf of and under the Department of Health, pursuant to its regulations, ordinances and health laws.” When the case came to be tried. it appeared by the plaintiff's evidence that in October, 1909, he had received a letter, purporting to come from the Department of Health of The City of New York and signed by the defendant as “Chief of the Division of General Sanitary Inspection," in which he was informed, in substance, that, as the result of an inspection of his dairy farm, certain insanitary conditions were found to exist, which, if not improved within a centain time, would require notice to be given to the vendors of his milk in The City of New York that it was produced in violation of the terms of their permit. This was followed by a letter from the defendant addressed to the creamery company dated December 6 and signed as in the previous letter. It informed the company that "the rules of the department for the production of clean and wholesome milk were still being violated” by the plaintiff and gave notice not to include his milk in future shipments. Recognizing this communication as one from the Department of Health of The City of New York, the plaintiff addressed a reply to the department on December 9, referring to the letter of December 6 and stating that he had been making improvements to his premises : that he was willing to comply with any reasonable demands, if informed as to the changes desired, and that he was interested with all the patrons of the creamery in the effort "to produce a wholesome milk product.” On December 11 specifications concerning plaintiff's stable, dairy and herd were sent him by the department. On January 14, 1910, the plaintiff, being notified by the manager of the creamery to that effect, recommenced his delivery of milk and the damage, alleged to have been sustained by him was for the interruption of his sales between December 8, 1909, and January 14, 1910.



The evidence showed that the defendant was never upon the plaintiff's premises and that those who went there as inspectors for the Department of Health were received without objeation by the plaintiff and conducted by him over his farm and through his buildings. It showed that all communications from the defendant to the plaintiff were official in their form and character. At the conclusion of the plaintiff's case his complaint was dismissed, and the judgment thereupon entered in favor of the defendant was affirmed at the Appellate Division.

I think that the plaintiff was properly nonsuited, for upon this state of facts what cause of action against the defendant was apparent? If the plaintiff's complaint was in trespass, the evidence failed to show an unauthorized entry upon his premises, either by the defendant or by any agent. If, however, the alleged "trespass upon the property rights of the plaintiff” consisted in causing the interruption in the sale of his milk product, then no cause of action was made out. It will be observed that the complaint charged the defendant with doing the acts complained of, while "assuming to be a public officer and chief of the division of sanitary inspection of the Department of Health.” It is clear, if the defendant was not an officer of the Health Department, that no act of his could have prevented the shipment by the creamery of plaintiff's milk to New York City. If, as is probably true, what the plaintiff intended was to charge an illegal exercise by the defendant of official power, or of the powers conferred upon the Board of Health, then I find no cause of action established. The complaint does not allege that the defendant acted in excess of his authority as an officer of the Department of Health, nor that he acted in bad faith, or without due care, or maliciously, and, therefore, in what he did as such officer he was protected by the statute against the consequences. Section 1196 of the Greater New York Charter provides in substance, that no member, officer or agent of the Department of Health shall be sued or held to liability for any act done in good faith and with ordinary discretion on behalf of the department or pursuant to its regulations, ordinances or health laws. "And any person whose property may have been

injured, pursuant to any

action of said Department of Health or its officers, for which no personal liability may exist,” is remitted by the statute to "an action against the City for the recovery of the proper compensation or damage.” Acting as an officer of the Department of Health, in good faith, if the defendant's acts caused any lost to the plaintiff the latter's exclusive remedy, upon the ground of an illegal exercise of power, was by an action against the City. The case shows that the defendant did nothing except as an officer of the department, taking action upon the reports made by agents as to the insanitary conditions under which the plaintiff's milk was produced.

The argument that the Department of Health of The City of New York exceeded its lawful powers "in assuming to regulate the method of the production of milk by the plaintiff and in prohibiting the creamery company from including plaintiff's milk in its shipments” is unsound, as is the argument that the statute, if conferring such an authority, was invalid, as delegating to the officers of the municipality jurisdiction over the affairs of another locality. The Department of Health of The City of New York is charged by law with the responsibility of preventing pestilence and disease in The City of New York. Its duty is to enforce all laws applicable to the preservation of human life and the promotion of health and such as relate to the use or sale of unwholesome, deleterious or adulterated food. In the faithful and efficient performance of that duty, the whole State, as well as the City, is concerned, and the department must be deemed to possess whatever power is needed to make effective the express powers conferred. So broad is the responsibility with which the Department of Health is charged, that it is to give all information in its possession relating to the existence and cause of disease to the local health authorities of any city, village or town which may request the same, and to "add thereto such useful suggestions” as experience may supply. Of the food supplies introduced into The City of New York, milk is one of the most important. It is now a matter of common knowledge that, if infected, it carries with it the germs or bacilli of dangerous and epidemic diseases. It is the food of the infant and it is an important element of the food of the adult. It may be infected as it comes from the cow or it may be contaminated by reason of the insanitary conditions of the dairy. Whatever, therefore, the Department of Health may do towards preventing the introduction of milk into The City of New York, which its officers have reason to believe to be unwholesome and deleterious, is in the performance oi a statutory duty. It is unreasonable to say that the Department of Health, in exercising such a power, renders itself amenable to the charge of exercising an extraterritorial jurisdiction. In notifying the creamery company not to include the plaintiff's milk in its shipments to the City, it was acting for the protection of the inhabitants of The City of New York, and, therefore, for local interests. There was no interference with the plaintiff's conduct of his farm or business except as he proposed to supply milk to The City of New York; there was simply an embargo laid upon the introduction within The City of New York of any milk not produced by him under conditions specified by the department. It had the right to exact from all shippers of milk a compliance with such conditions as would reasonably tend to a pure product for the use of the citizens, as a condition of permitting its sale in The City of New York. In exercising the supervision and in taking the preventive measures, which appear in the evidence, the Department of Health was properly and reasonably executing the duty imposed upon it by the statute of conserving the public health; in which, as I have already observed, the State at large is equally interested with the City. For these reasons I advise that the judgment appealed from be affirmed.

INCREASE IN DEATHS FROM INFLUENZA. A dispatch from Vienna to the “New York Times,” dated March 14, states that the worst epidemic of influenza on record is afflicting the Austrian capital. Halí a million cases have been reported during the past three months, and the epidemic is still raging so severely as to tax the capacity of the doctors, public hospitals and nursing institutions. Whole families appear to be attacked simultaneously and persons of all ages are equally affected. The disease appears to be of a peculiarly virulent type with serious after effects, such as inflammation of the lungs, bronchitis, indigestion and general debility. Recent reports also state that the disease is very prevalent in Boston, Rochester, and other cities in the eastern part of the United States.

In New York City, an increase in the number of cases of influenza has unquestionably occurred during the past five weeks accompanied by a decided increase in the number of deaths from those diseases with which influenza is so often complicated, bronchitis, lobar pneumonia and broncho pneumonia. Influenza is especially fatal at the extremes of life, and we find, during the past five weeks, a marked increase in the number of deaths occurring under five years of age and at sixty-five years and over. These features are shown in the following mortality tables, which cannot fail to be of interest to physicians and sanitarians :

Week Week Week Week Week Week Week Week Week Week
Ending Ending Ending Ending Ending Ending Ending Ending Ending Ending
Feb. Feb. Feb. Feb. Feb, Feb. Mar. Mar. Mar.


10. 1912.

8. 1913.

17. 1912.

15. 1913.

24. 1912.

22. 1913.

2. 1912.

1. 1913,

9. 1912.

8 1913.

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Since the great pandemic of 1890 and 1891, influenza has been mildly endemic in New York City, manifesting every now and then exacerbations in severity. A fatal result, except in the very young or very, old, is almost always occasioned by complications, usually those involving the respiratory apparatus. It is very evident from the mortality statistics cited above that New York has recently experienced one of the periodic increases of the diseases both in severity and extent. With the approaching advent of warmer weather, accompanied by the free ventilation of dwellings, it is not likely that any further increase in the extent and severity of the disease will take place, and a severe epidemic resembling that of 1890 is certainly not to be apprehended.

MORTALITY OF THE WEEK. There were 1,848 deaths and a rate of 17.94 per 1,000 reported during the week ending March 15, 1913, as against 1,602 deaths and a rate of 16.15, an increase of 246 deaths and 1.79 points. This increased mortality prevailed at all ages. Among children it was caused by an increase of 13 deaths from measles, 9 from diphtheria and croup and 7 from whooping cough. The most prominent factor in the increased mortality was due to the presence of influenza as shown by the increased mortality from pneumonia (93), organic heart diseases (41), Bright's disease and nephritis (21), digestive diseases (18), and all other causes (64). There were 19 more deaths reported among children under 5, 143 more deaths between the ages of 5 and 65, and 84 more deaths at the ages of 65 and over.

The death rate for the first 11 weeks of 1913 was 15.79, as against 15.68 in the corresponding period of 1912, an increase of .11 of a point.

Summary for Week Ending Saturday, 12 M., March 15, 1913.


*Corrected; 1913.

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