Wilks v. City of Caruthersville

• Decision Date: 09 January 1912
• Citation: 142 S.W. 800,162 Mo. App. 492
• Parties: WILKS v. CITY OF CARUTHERSVILLE.
• Court: Missouri Court of Appeals

142 S.W. 800

162 Mo. App. 492

WILKS v. CITY OF CARUTHERSVILLE.

St. Louis Court of Appeals, Missouri.

January 9, 1912.

Rehearing Denied January 23, 1912.

1. MUNICIPAL CORPORATIONS (§ 747)—TORTS —ACTS OF OFFICERS.

While a city is liable for the torts of its officers, committed while exercising its proprietary or private powers, as to powers exercised exclusively for the public good, the city acts as a mere agent of the state, and is not therefore liable, under the doctrine of respondeat superior, for the wrongful exercise of such powers by its agents; and, as the keeping of a pound conserves the public good by removing from the street what might otherwise become a nuisance, the city is not liable for the negligent act of the keeper of the pound, causing the death of a horse taken up by him.

2. ANIMALS (§ 104)—POUNDS—FAILURE TO CONSTRUCT PROPER POUND.

A city cannot be held liable for negligence in failing to provide a proper pound, in an action for the death of a horse taken up by the poundkeeper, where the death was not caused by the placing of the horse in the pound, but occurred by reason of the horse's falling and breaking his neck, on becoming frightened and running away while temporarily tied near the pound.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by Mary H. Wilks against the City of Caruthersville. From a judgment for plaintiff, defendant appeals. Reversed.

Reeves & Hawkins and Vance J. Higgs, for appellant. Alex Z. Patterson and Arthur L. Oliver, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant is a city of the fourth class, incorporated and existing under the provisions of the general statutes pertaining thereto. Defendant's ordinance forbids horses and certain other animals from running at large within its corporate limits, provides for a poundkeeper, and directs him to restrain such animals, etc. The suit proceeds against the city on account of the negligence of its poundkeeper with respect to plaintiff's horse, while it was in his possession after being taken upon the public streets. It appears plaintiff's horse was running at large, with a rope around its neck, in the public streets, and defendant's poundkeeper caught it, with the purpose of impounding it. After having taken up the horse, the poundkeeper led it to the pound, but before placing it therein tied it to a fence, while he removed an empty wagon to a point where the horses might not come in contact therewith. Immediately upon plaintiff's horse being tied to the fence, it became frightened from some cause, reared backward, and tore from the fence the board to which it was tied. The record is quite barren of evidence tending to prove what occasioned the fright of the horse, but it suggests that water may have been thrown upon its neck by either the poundkeeper or his assistant. When plaintiff's horse reared backward, it tore from the fence a board some five or six feet in length, to which it was tied, and ran violently through the streets of the city, dragging the board. During the rampage, the horse stepped upon the board, and stumbled and fell with such force as to break its neck. According to the proof, the horse was not hitched to the fence for more than a minute until it became frightened and broke away. A few minutes later, after the horse had fallen to its death, a considerable wet spot was found about its head and neck, indicating that water had been thrown upon it. There is proof that the horse was afraid of a hydrant, and that a hydrant stood near where the poundkeeper tied it to the fence.

The theory of plaintiff's case and the proof introduced suggest the act of the poundkeeper, so tying the horse to the fence and permitting some one to throw water upon it, as a negligent breach of duty with respect to the obligation of defendant to exercise ordinary care for the safety of the animal while in its possession. Indeed, the proof of negligence is very meager, and that last stated is all the evidence tends to show.

It is argued the court erred in refusing to direct a verdict for defendant, because it is not liable for the negligent acts of its poundkeeper in the circumstances of the case, and we believe the argument to be sound. There are some cases in which the negligent acts and conduct of its officers and agents may cast liability upon the city, under the rule respondeat superior, but this is not one of them. Where the suit proceeds because of an injury inflicted upon another through the negligent act of an officer or agent of the municipality in exercising its powers of a proprietary or private nature, as contradistinguished from those of a public character, a recovery may be allowed against the city under the rule respondeat superior. Such proprietary powers of a private character, possessed and exercised by the corporation, are those which are conferred for the private advantage of the municipality, as to construct and maintain sewers, to provide water for the use of the city and its inhabitants, to make and repair streets, to generate and supply light, and other like powers for municipal advantage and emolument. For injuries inflicted through the negligence of the city's agents...