Barret v. City of Mobile

• Decision Date: 18 April 1901
• Citation: 129 Ala. 179,30 So. 36
• Parties: BARRET v. CITY OF MOBILE ET AL.
• Court: Alabama Supreme Court

30 So. 36

129 Ala. 179

BARRET v. CITY OF MOBILE ET AL.

Supreme Court of Alabama

April 18, 1901

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Kate W. Barret against the city of Mobile and others. Judgment for defendant, and plaintiff appeals. Reversed.

The complaint, as originally filed, contained three counts. The first count was for trespass, in the Code form, for wrongfully taking one mule, the property of the defendant. The second count was in trover, and was in Code form for the wrongful conversion by the defendants of one mule. The third count of the complaint was a special count, and was in words and figures as follows: "(3) Plaintiff claims of the defendants one hundred and twenty-five dollars damages for that on, to wit, the 8th day of August, 1898, she was the owner of a mule, of the value of one hundred and twenty-five dollars. Plaintiff avers that the municipal Code of the city of Mobile provides that 'upon the complaint of the health officer that a horse has glanders and is dangerous to the health of man or beast, or that any animal is diseased and thus dangerous, or any object is a nuisance and dangerous to health and safety of man or beast in the city, the recorder shall take the evidence of two disinterested and reputable citizens, and may thereupon, if satisfied such complaint is well founded, in his discretion issue a warrant, directed to any police officer, requiring him to enter upon the premises where such animal or object is, and under the direction of the health officer remove it, alive or dead, to a place of safety. Such warrant shall also authorize the officer, if so directed by the health officer for prudential reasons, to kill an infected animal before removal.' Plaintiff further avers that the defendant Rhett Goode was on the day aforesaid health officer of the said city of Mobile. Plaintiff further avers that on the day aforesaid the said defendant Rhett Goode, acting as such health officer for and on behalf of the said city of Mobile, ordered the said mule of plaintiff to be killed, and said mule was killed by a police officer in obedience to such order. Plaintiff further avers that there was no complaint made by said health officer to the recorder, as provided by said municipal law; nor was there any evidence taken before the recorder of disinterested and reputable citizens that said mule had glanders and was dangerous to the health of man or beast, or was diseased and was thus dangerous, as is also provided by such ordinance nor was there any warrant directed by the recorder, after an investigation by him, to any police officer, requiring him to kill said animal, as is also required by law." To the entire complaint the city of Mobile demurred, upon the ground that the complaint fails to allege that said claim was presented to the general council of the city of Mobile as required under the charter of said city. This demurrer of the city of Mobile was sustained. Thereafter, upon motion of the city of Mobile, it was ordered that the cause be dismissed as to the city of Mobile. The defendant Rhett Goode then filed two pleas, which were as follows: "(1) The defendant Rhett Goode, for answer to the complaint, saith he is not guilty of the matters alleged therein. (2) And now comes the defendant in this cause, and for further plea in this behalf says actio non, because he says that said horse was afflicted with glanders, an infectious and contagious disease, and that he ordered the same killed, as the executive officer of the board of health of Mobile county, as he was required to do under the laws of Alabama." Issue was joined upon these two pleas. The plaintiff introduced witnesses who testified that the mule belonging to the plaintiff, valued at from $150 to $200, was killed by one Gilroy, an officer of the city of Mobile; that when said Gilroy came to kill the mule he stated that he was acting under the orders of Dr. Rhett Goode health officer of the city of Mobile. After the introduction of this testimony, the plaintiff moved the court to strike out the third count of the complaint, which was granted without objection on the part of the defendant. Thereupon the defendant moved the court for leave to withdraw his special plea, numbered 2, which motion was granted, without objection on the part of the plaintiff. The evidence for the defendant tended to show that the mule which was killed had a disease known as "acute glanders"; that the said disease was dangerous, both to man and beast, and was infectious and contagious; and that a veterinary surgeon reported the fact that the mule was so afflicted to the health officer of the city of Mobile, in which city the mule was kept at the time he was killed. Dr. Rhett Goode, the defendant, testified that a veterinary surgeon reported to him that a mule belonging to the plaintiff had the disease glanders; that thereupon he issued instructions to have the mule killed, provided that there was no objection on the part of the owners of the animal; that in so ordering he acted for the board of health of the city of Mobile, under the authority conferred upon the city by its charter; and that on giving said instructions to the sanitary officer to kill said mule he acted in the capacity of said health officer. There was no evidence introduced by the defendant to show that there was any special order issued conferring power upon him to have destroyed or killed an animal having a contagious infectious, or dangerous disease within the corporate limits of the city of Mobile. Upon defendant offering the testimony showing his official character, and the fact that he was informed as to the mule in issue having glanders, and the circumstances under which he ordered the mule killed, the plaintiff separately objected, and moved to exclude such testimony. The court overruled each of such objections and motions, and to each of these rulings the plaintiff separately excepted. Upon the introduction of all the evidence the plaintiff requested the court, among other charges, to give the general affirmative charge in her behalf. The court refused to give the several written charges requested by the plaintiff, to the refusal to give each of which the plaintiff separately excepted.

John E. Mitchell, for appellant.

B. B. Boone, for appellees.

SHARPE J.

By the charter act of...