Ferry v. Sawyer

• Decision Date: 21 May 1917
• Citation: 195 S.W. 574,198 Mo.App. 30
• Parties: J. A. FERRY, Respondent, v. W. J. SAWYER, Appellant
• Court: Missouri Court of Appeals

195 S.W. 574

198 Mo.App. 30

J. A. FERRY, Respondent, v. W. J. SAWYER, Appellant

Court of Appeals of Missouri, Springfield

May 21, 1917

Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.

Judgment reversed and cause remanded.

A Sloan Oliver, Sam J. Corbett, Roy G. Garrison and Pierre S Phillips for appellant.

Cities of the fourth class are given authority by statute to regulate or prohibit the running at large of stock, by ordinance, and to cause such as may be running at large to be impounded, to provide for the erection of all needful pounds, within or without the city limits, and appoint and compensate keepers thereof and establish and enforce rules governing the same. Section 9374, R. S. 1909; Evans v. Holman, 202 Mo. 295-296.

J. E. Duncan for respondent.

In the case of Spitler v. Young, 63 Mo. 45, Judge WAGONER, in speaking for the court, said: "As soon as plaintiff heard of the escape of his hogs and on the evening of the same day, he made pursuit of them, and on the next morning found them in possession of the defendant. Whilst physically they were found in the streets, or within the corporate limits, yet they were not there within the meaning and spirit as contemplated by the ordinance. It was intended to compel people to restrain their animals, but it was not designed to punish them for an unavoidable escape, where the owner used the requisite diligence to reclaim them."

FARRINGTON, J. Cox, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

The escape of a Missouri mule is the basis of this new law suit. It was a black mare mule. The plaintiff, its owner, brought a suit in replevin to recover the mule which at the time the suit was instituted was in possession of the defendant. The jury returned a verdict for the plaintiff, allowing no damages for the detention, and defendant appeals.

The evidence offered by the plaintiff is that he had gone away from home leaving the mule in the barn and lot securely fastened, and that his wife was left in charge and care of the animal while he was away. Some raised a hue and cry that the mule had escaped from the lot. The wife who testified that she was left in charge of the mule, which would not constitute her an agent of the plaintiff so as to make her testimony competent (White v. Chaney, 20 Mo.App 389, Gardner v. Railway Co., 124 Mo.App. 461, 101 S.W. 684), stated that she started out to catch it. This scene is laid in the city of Caruthersville. The mule started down an alley near the lot from which it had escaped and plaintiff's wife in hot pursuit. She was of a mind that when it got to the street it would turn one way, but the mule was of a different mind and turned another way. At any rate, within from five to ten minutes after it had escaped from the lot it fell into the hands of the defendant who was the city impounder. All the evidence goes to show that there was no negligence on the part of the plaintiff or his wife in connection with the mule's escape and that its escape was against their will and that the wife was endeavoring as best she could to catch it and take it back to the barn. The evidence shows that the mule was chased and caught by the impounder "in old lady Knott's garden." The plaintiff's wife came up to the impounder, who had placed a rope on the mule and was standing talking in the street to a merchant, and asked the impounder for the animal. He declined to surrender his charge unless she would pay the regular impounding fee of one dollar. This she refused to do--and there is some evidence that she went home mad. Thereafter plaintiff brought this suit, it being admitted that he had not paid or tendered the regular...