Before considering the instructions requested by the defendant, it is proper to call attention to the different and distinct duties and powers of the board of health where a person ill with an infectious disease is found in a house, so sick that he cannot be removed, and where he is not so sick but that he may be removed with safety. In the latter case, the board of health may. make provision, in the manner it judges best for the safety of the inhabitants, by removing the person “ to a separate house or otherwise,” and “ by providing nurses and other assistance and necessaries.” Pub. Sts. e. 80, §§ 40, 41, 75. Section 40 contemplates that, if the person under such circumstances is taken care of where he is, it will be by virtue of some *322contract that he shall be thus provided for. Spring v. Hyde Park, 137 Mass. 554, 557. If it is necessary to remove him, ample provision is made therefor. Should he object to the removal, a warrant authorizing the removal may be issued by two justices of the peace. Pub. Sts. c. 80, § 43. A suitable place to which he can be removed may be provided by authority of the sections of the same chapter which authorize contracts to be made for hospitals and houses, to be impressed upon proper proceedings had. §§ 43-48, 70-75.
If a person cannot be removed without danger to health, “the house or place where he remains shall be considered as a hospital, and all persons residing in or in any way concerned within the same shall be subject to the regulations of the board as before provided.” § 75. By reference to the preceding .section it is seen that, when a hospital is established, “ the physician, nurses, attendants, the persons sick therein, and all persons approaching or coming within the limits thereof, and all furniture or other articles used or brought there,” are subjected to such regulations as the board of health may prescribe. § 74.' These sections do not authorize the taking possession by the board of health, acting without a warrant, of premises to the exclusion of the owner thereof, or of the person entitled to lawful possession, even where one is too sick to be removed; but authorize such premises, and the use thereof, to be subjected to regulations of a very stringent character. Section 41 contemplates that, when a person cannot be removed, a contract may be made for his comfort where he is, and, in such case, persons in the neighborhood may be removed, and other precautions taken.
Assuming, in behalf of the defendant, who acted for the board of health, that all he did was done honestly for the purpose of preventing the spread of the small-pox, and for the safety of the inhabitants, it was necessary that he should act within the authority given him by the statute ; and the general instructions set forth this authority clearly and distinctly.
We proceed to consider such of the numerous requests for instructions made by the defendant as seem to call for remark in this connection.
Although the disease was of a dangerous type, the case presents no evidence that the plaintiff, and those of her guests *323who were also infected, could not have been removed without danger to health, or that the defendant acted upon the theory that they could not. Nor does it appear that the defendant, in that which he did, acted in any way by virtue of any contract with the plaintiff, or of any authority from her, but always in invitwm.
The defendant contends that he was entitled to the instruction that he was authorized “to station such persons as he might deem necessary on or near the premises, to guard against ingress or egress, for the purpose of preventing the spread of the disease.” We are not prepared to say, that, if the infected persons could not have been removed, the board of health — acting either under the authority of the Pub. Sts. o. 80, § 41, which permit the board “ to take such other measures as it judges necessary for the safety of the inhabitants,” or that of § 75, which, under such circumstances, permits the board to consider the place as a hospital, and to subject it to regulations as such — might not have forbidden ingress and egress except under such restraints as the board might impose; but the mere fact that small-pox existed on the plaintiff’s premises did not authorize the defendant thus to control them, in the absence of any contract with or authority from the owner. While, when such a disease exists in a town, the board of health are to use all possible care in preventing the spread of infection, and to give public notice “ by displaying red flags," and “ by all other means which in their judgment shall be most effectual for the common safety," this care is to be exercised in the mode prescribed by law, and with that regard to the rights of others in their persons and property which is shown by other sections of the statute to be required. By the general authority to take such measures as are deemed necessary for the safety of the inhabitants, it is not intended to confer unlimited authority on the board to control persons and property at its discretion. The case at bar does not require us to consider what would have been the right of the board of health in case the person infected could not have been removed, nor what would be its right in case there could be a removal, and ingress and egress were forbidden only while this was being effected. It is to be observed that, while §§ 40, 41, 75, 76, and 77 do not ordinarily apply, so far as removal of patients from their houses is concerned, to cases of *324small-pox, the present case is within the exception to the rule, as those infected were persons residing in a boarding-house. § 82.
Similar considerations apply to the second request of the defendant. The defendant did not act under those provisions of the statute which authorize the removal of nuisances, causes of sickness, &c. §§ 18-27. His right to take possession of the house, or any portion of it, fumigate it, &c., depended upon the inquiry whether the infected persons could be removed therefrom. If they could not, the authority given under §§ 41 and 75 might entitle the defendant to take the necessary steps to fumigate and disinfect such part thereof as those persons infected occupied, or such as were liable by their occupation to infection, but no such case as this is shown to have existed. Certainly the whole request could not have been granted, as this would have justified the taking possession of all infected articles, if, in the judgment of the defendant, this was necessary to prevent the spread of the disease. Where there are infected articles that should be cleansed or destroyed, provision is made for the issuing of a warrant by a justice, to be executed by the sheriff, under the direction of the board of health, by virtue of which such articles may be seized and destroyed, under the usual safeguards which attend the execution of legal process. §§ 44-48.
The remaining requests do not appear to call for extended comment. The third is somewhat involved in expression, but it was sufficiently given, in holding the defendant liable only in case he controlled the house to the exclusion of the plaintiff, and carried away or destroyed the property of the plaintiff.
The fourth, fifth, sixth, and ninth requests were covered by the instruction that the defendant was responsible only for acts done by himself or his agents. The seventh and eighth required the judge to select particular pieces of evidence, and to rule as to the effect to be given to them when there was more evidence on the same point. This the defendant could not properly ask. The tenth and eleventh requests were given in substance.
The rule for damages as to the personal property, that it should be what the property was worth at the time, and requiring the jury to consider how much their “value” had been affected by their exposure, was correct. Selkirk v. Cobb, 13 Gray, 313.
^Exceptions overruled.