New Ulm review. (New Ulm, Brown County, Minn.) 1892-1961, 1915-01-27
DEMURRER OF CITY lNTYPHoID
CASES SUSTAINED BY JUDGE
l.. M. OLSEN
WILL BE CARRIED TO HIGHEST
COURTS TO MAKE TEST
OF LAW

Whether or not the City of New Ulm
is liable in damages to those who suffered
in last years typhoid epidemic, con-
ceding that the facts as alleged in the
complaint of Gertrude Frasch are true,
will have to be decided by the Supreme
Court of Minnesota. Judge Olsen sus-
tanned the City's demurrer and this will
carry the case higher.
It will be remembered that the plain
tiff in the pending case, Gertrude Frasch,
and others became seriously ill with
typhoid fever, the cause of the illness
being laid at the door of the city water
which is claimed to have been seriously
contaminated with typhoid bacilli.
Practically all of the injured parties
filed claims with the city of New Ulm
for allowance which claims lateron re-
jected by the city council.
For the purpose of determining the
city's liability the attorneys of the
claimants, Davis & Michael of Marshall,
commenced an action on behalf of Ger
trude Frasch against the City. To this
complaint the city of New Ulm thru S.
B. Wilson of Mankato and Pfaender &
Flor of New Ulm interposed demurrer
on the ground that the complaint does
not state facts sufficient to constitute a
cause of action. This demurrer was
argued at Marshall in December, 1914,
and by an order filed recently Judge
Olsen sustains the demurrer. In his
memorandum the Judge says that the
questions raised are important and
should be finally Undetermined by the
higher court and that this may most
economically and speedily be done by an
appeal from an order sustaining the de-
murrer.
From the memorandum filed by the
Court it appears that the complaint is
demurred to on the ground primarily
that it fails to allege that notice of the
loss or damage was given to the city as
provided by Sec. 1886, General Statutes,
1913. The two questions raised by the
demurrer are whether the Section ap-
plies to an injury of this kind and if it
does apply, whether the Sections in
question is vailed and constitutional.
In other words even if it should be
proven that the typhoid epidemic was
caused by the city water and that the
city's officers were negligent, the injured
parties cannot recover from the City
if the Supreme Court holds the Section
in question as valid and constitutional
and that it applies to cases as set forth
in Gertrude Frasch's complaint, if no
notice of such loss or damage was given
to the City within the time prescribed
by law.
In his memorandum Judge Olsen gives
a history of the legislation passed de-
termining the liability of cities in given
cases, the construction placed on such
laws by the Supreme Court and the
change made in the laws to
conform to the decisions made by the
Supreme Court. By Chapter 391, Laws
OF 1913, the act was expressly made to
apply to cases where the municipality
was the master and the one injured was
it's servant and to apply to cases brought
by personal representatives of deceased
persons for wrongful death. The court
states that it seems reasonably clear that
the intent of the lawmakers was to make
the act apply to all claims for damages
for personal injury against a city or vii
lage arising out of any negligence charg-
ed against the municipality. The plai-
tiff contends that the statute does not
apply to negligent acts or omissions of |
officers and agents while en-
gagged in the so-called private Gas opposed
TO governmentaD corporate business of |
The municipality. The Court is of the
opinion that the Legislature may require
reasonable notice as condition to an ac-
ion against city upon claims of this kind
and for that reason sustained the demur-
r..
Word was received here Tuesday that