Crawford v. Town of D'Lo

Municipai, Corporation's. Maintenance of hog pound. Liability. It was wrongful and actionable negligence for a city to build a hog pound or pen on its own property, within twelve feet of plaintiff’s residence and to leave a dead pig in such pen aftei due notice of its death.

Appeal from the circuit court of Simpson county. Hon. H. H. Hughes, Judge. Suit by Miss Emma Crawford against tbe town of D’Lo. From a, judgment for defendant, plaintiff appeals. Tbe facts are fully stated in tbe opinion of tbe court. Tbe demurrer is on tbe theory that tbe town cannot be’rendered liable for the torts of its officers or agents. This is not , tbe case where plaintiff seeks to bold liable a municipal corporation for tbe acts .of its agents or officers, except where such acts are wilful, and ratified by. Such' corporation. Tlie declaration charges that the pen was built by the town on property owned by it, and that it was built within about twelve feet of the dining room of plaintiff over her protest, and that as soon as the hog died, she notified the mayor of said town and requested its removal and that her request was ignored and as a result, the damages came. It is our contention that the municipality, as to its liability in this case, is governed by the same rules of law as would he a private citizen and in support of this theory we beg to submit the following authority: “The liability of a municipality for negligence in the management of a public service manufacturing plant which it operates is determined by the same rules that apply to individuals and private corporations engaged in like business.” Yazoo City v. Birchett, 89 Miss. 700, 42 So. 569. “A city will be compelled to respond in 'damages where it has failed, after notice, to put a stop to the emptying of private sewers into public gutters and the offal from such gutters has gravitated onto a vacant lot, thereby rendering adjacent property uninhabitable.” Vicksburg v. Richardson, 90 Miss. 1, 42 So. 234. “If the wrongful acts of the municipal officer was authorized by the municipality or after being done was ratified by such municipality the municipality will be liable for such acts.” Shearman et al. v. City of Grenada, 51 Miss. 186. We respectfully submit that the declaration states a good cause of action and that the demurrer should have been overruled. Appellee, who was defendant in the court below, demurred to said declaration and assigned four causes in support of said demurrer, and the court having sustained said demurrer and appellant declining to amend said declaration; the suit was dismissed and thus it comes to this court on appeal by said plaintiff. All the four causes of demurrer challenge the right of the said plaintiff to look to the defendant, the town of D’Lo, for redress on the facts stated in the declaration. If the plaintiff has any cause of action, it is against the marshal and not the town of D’Lo, Counsel, for appellant, in his brief, has cited the case of Yazoo City• v. Birchett, 89 Miss. 700, 42 So. 569. In the case cited, Yazoo City had embarked' in the telephone business, owning .and operating same for profit, and under those conditions, this court held that it was liable, or not liable, by the same rules applicable to private corporations conducting such an enterprise. In the operation of the telephone it was exercising a special or private corporate purpose, for the accomplishment of which it acted not through its public officers as such', but through agents or servants employed by it. This is a very different proposition from the case on trial. In the latter, the town of D’Lo passed the ordinance, and the enforcement of said ordinance was committed, entirely to the marshal of said municipality, who is a public officer, required to make an official bond, and whose duties are fixed and limited by law. See paragraph 2, page 1257, Yol. 28, Cyc. In the latter case, the municipality'is not liable, because its functions are governmental and political. So, we contend, the case cited has no application. Learned counsel, for appellant also cites the case of Mayor, etc., of Vicksburg v. Richardson, 90 Miss. 1, 42 So. 234. We are at a loss to understand how this case can help the plaintiff in the court below and appellant here. That was a suit by “Margaret Richardson v. Mayor and Aldermen of Vicksburg” and not against the city of Vicksburg. This is the way that the case appears to us, but if it be.contended that the suit was against the city of Vicksburg, then it is still not a parallel case for several reasons. In the first place, the suit is not shown to have' been predicated upon an ordinance, showing how the statute on the subject should be enforced, and in the second place, there is no such point made. The town of D’Lo had passed an ordinance and committed its enforcement ■ to the marshal, and if said marshal had performed his duties as such, and as required by said ordinance, the said appellant would have no cause of action such as is alleged in her declaration. If the declaration states a case of liability, certainly the marshal and his bondsmen are primarily liable. Then what would be the wisdom in permitting the appellant to prevail in this controversy? If the appellant should prevail, then there would be another case of the town of D ’Lo against the marshal and his bondsmen, and it has always been the policy of the law to avoid circuity of action. The very able and accomplished counsel for appellant cites the case of Sherman v. City of Grenada, 51 Miss. 186. What comfort he can get out of this case, I am unable to understand. This case simply holds that a munincipal corporation “cannot be made liable for the illegal acts of its officers and agents, unless these acts are done under its authority previously conferred, or one subsequently ratified.” To further support our contention, we cite the case of Sutton & Dudley v. Board of Police of Carroll County, 41 Miss. 236. This case is directly in point and was an action brought by appellants to recover damages for injuries sustained by them by reason of a bridge and public highway in Carroll county being out of repair. The question for adjudication was whether the board of police was responsible for the injury and the court decided in the negative. In passing upon this case, the court also held that the county acting through its hoard of police was performing some of the functions of a municipal corporation, and was governed by the law on that subject. We make this observation to show the applicability of this case to the case under consideration. We quote from that casé. On page 239, the court uses the following language: “Private corporations are responsible for the tor-tious acts of their agents. But generally this is not the case with municipal corporations; and especially is it not so where the persons have been appointed by the corporation in obedience to statutory provisions, and where their duties are prescribed by law, and with penalties for their non-performance. In such cases, the duty of the person is to the public and not to the corporation which appointed him; he is a public servant and not the agent of the corporation. He is the person to whom the duty intended to be performed is committed by law. The duty of the corporation or civil tribunal is to appoint the person who shall become responsible to the public for the performance of the particular public service,” etc. Before concluding this brief, we wish to call the attention of the court to one other question. The declaration charges that the dead hog had been impounded by virtue of an ordinance passed by the mayor and board of aldermen of the said town of D’Lo, but there is no copy of said ordinance attached to the said declaration, and this court has said, that it will not take judicial notice of town ordinances. See Naul iv. McGomb City, 70 Miss. 699, 12 So. 903. The demurrer of the defendant admits that there was such an ordinance, but says that its enforcement was committed to the marshal of said town. As stated in Canse No. 2 of the demurrer the plaintiff makes said ordinance the basis of her suit. If this court-should hold that it has no evidence of such an ’ordinance, then the judgment of the lower court must be affirmed. Then again, if this court should hold from the pleadings in this cause, and we do not think .that it can so hold, that there was and is such an ordinance, then we submit that it must likewise hold that its enforcement was committed to the marshal of the said town. Then, and in that event, the judgment of the lower court must be affirmed for the reason that under-those conditions, the town is not liable, but that the plaintiff below and appellant here must look to the marshal and his bondsmen for redress. The authorities herein cited show that the court below reached the right result and so we submit in confidence that its judgment will be affirmed.