Ratliff v. City of Bessemer
| Decision Date | 14 December 1920 |
| Docket Number | 6 Div. 834 |
| Court | Alabama Court of Appeals |
| Parties | RATLIFF v. CITY OF BESSEMER et al. |
Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Action in detinue and for conversion of a mule by J.P. Ratliff against the city of Bessemer and others. Judgment for defendants and plaintiff appealed. Reversed and remanded.
Pinkney Scott, of Bessemer, for appellant.
George Bumgardner, of Bessemer, for appellees.
The record of this appeal does not contain the summons, and the complaint as set out does not contain the names of the parties to the suit. We think, however, it fairly appears from the oral charge, and other matters contained in the record, that the suit was one by J.P. Ratliff, as plaintiff against the city of Bessemer, C.M. Lacy, J.W. Ware, M.W Hill, and Will Hurd, defendants: and, no questions being raised as to this aspect of the case, it will be considered in the light of the above parties as plaintiff and defendants.
The plaintiff sought to recover damages for an alleged conversion by the defendants of a certain mule, and also to recover the particular mule under a count in detinue. Under the instruction of the trial court the city of Bessemer was eliminated; the charge being that under the evidence a recovery could not be had against it. The plaintiff was denied the general affirmative charge requested in writing and there was a verdict and judgment in favor of the defendants. Plaintiff insists that the court was in error in charging that under the evidence the defendant city of Bessemer was not liable. The evidence tends to show without conflict that the mule in controversy was running at large on the streets of the city of Bessemer, and that the defendants Ware and Lacy, acting as impounding officers of the city, took up the mule, and that under certain ordinances in force at the time the mule was sold by the city to pay the pounding fee, and at the sale the defendant Hill purchased the mule. It may be said just at the outset that it does not appear under what theory the defendant Hurd was made a party defendant, as the evidence nowhere discloses his possession of or connection with either the city or the mule in any way, and as to him the general affirmative might well have been given as requested.
Under section 1285 of the Code of 1907, the Legislature granted the power to cities and municipalities "to regulate and prevent the running at large on the streets, of all horses, mules, cows, hogs, dogs, or other animals, and to pass all laws necessary for the impounding and sale of such animals, and destruction of dogs." In pursuance of this power the city of Bessemer adopted certain ordinances against stock running on the streets, providing impounding officers, the taking up of such animals, and the sale and disposition of them. The exercise of the power thus conferred upon the municipalities gives to their ordinances the same force and effect as if they had been passed directly by the state Legislature. In such cases they are in the discharge of duties imposed by law for the promotion and preservation of the public welfare, and discharge governmental functions. Their officers in the enforcement of their ordinance act in their public capacity. Gregg v. Hatcher, 94 Ark. 54, 125 S.W. 1007, 27 L.R.A. (N.S.) 138, 21 Ann.Cas. 982; 2 Am. & Eng.Enc. of Law (2d Ed.) 1193; Gillmor v. Salt Lake City, 32 Utah, 180, 89 P. 714, 12 L.R.A. (N.S.) 537, 13 Ann.Cas. 1016; 28 Cyc. L. & P. 1257; Valentine v. Englewood, 96 N.J.Law, 509, 71 A. 344, 19 L.R.A. (N.S.) 262, 16 Ann.Cas. 731.
In the case of Culver v. Streator, 130 Ill. 238, 22 N.E. 810, 6 L.R.A. 270, the court held:
"A municipal corporation is not liable for injuries resulting from negligent acts of one employed by it to enforce an ordinance forbidding the running at large of unmuzzled dogs, committed while in the discharge of the duties of his employment." McKay v. Buffalo, 9 Hun, 401; Whitfield v. Paris, 84 Tex. 431, 19 S.W. 566, 15 L.R.A. 783, 31 Am.St.Rep. 69.
See also, Dargan v. Mayor of Mobile, 31 Ala. 469, 70 Am.Dec. 505.
A municipal corporation is not liable for impounding animals under an ordinance enacted by virtue of statutory authority, although in the particular instance the seizure was wrongful. 19 R.C.L. pp. 1100, 1119.
The defendant city of Bessemer not being liable, it remains to be seen whether the other defendants, Ware, Lacy, and Hill, under the evidence, were liable. So far as the count in detinue was concerned, the testimony shows that the defendants Lacy and Ware did not have possession of the mule at the time the suit was filed, and that whatever possession they may have had as impounding officers had some time before passed, by virtue of the sale on the part of the city, when the defendant Hill purchased the mule, and that he, too, had swapped the mule and his possession had passed to another.
While, as stated above, the testimony discloses that the possession of the defendant Hill had passed to another, it also shows that he purchased the mule, claimed ownership of and assumed control of him by virtue of said sale, and, this being so, in order to free himself from liability under the conversion count, it was necessary to show that the city, from whom he derived title, had the right to sell the mule.
In an action to recover possession of stock, where...
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