Alderson v. Auerswald

80 Mo. App. 370 | Mo. Ct. App. | 1899

BOND, J.

Under certain ordinances of the city of De Soto its mayor is empowered to issue a proclamation requiring its citizens to muzzle or tie up all dogs owned by them, or in their possession, for a time specified, and in default of compliance with such proclamation it is made the duty of the marshal of said city to kill any dog running at large not muzzled. Harry Skewes sued the city, its mayor, and its marshal, for the killing by the latter of an unmuzzled dog. In speaking of the testimony of the marshal on the trial of which action defendant used the following language: “Alderson, the God-damned big-bellied' son of a bitch, swore a lie; he knows that he went up there to kill that dog, and he whistled him out and shot him,” whereupon the said marshal brought the present action for slander alleging that the words in question imputed to him the crime of perjury. Defendant admitted the speaking of the words, denied that they were uttered maliciously, and averred that the testimony of plaintiff given at the trial of the action for the killing of the dog and referred to in said language, was false and untrue. There was a trial and judgment for $100, actual, and $100 punitive damages, from which defendant appealed.

Immateriality. In the suit against the city and its officials for the killing of the dog the fact was admitted, and the ordinances of the city and the proclamation of its mayor in pursuance thereto, were pleaded in justification. It is clear, therefore, that the question of law thus raised was the only matter in dispute, and that the inquiry as to whether the marshal lured the unmuzzled and unchained dog within reach of his gun by whistling, was wholly immaterial and collateral to the question for decision. The proclamation of the mayor, after referring to the fact that mad dogs, which had bitten others, had been killed in the city, required all persons owning or having possession of dogs to “muzzle such dogs, or keep them chained, for a period of thirty days.” It is plain that a dog which was neither chained nor muzzled was kept in violation of this proclamation whether the dog Avas running loose on the premises of the OAvner or on the streets and alleys of the city, and it is equally plain that there would be as much danger to persons coming Avithin the yard where such dog was unconfined, as if they had met the dog outside of the yard. If the ordinance and proclamation of the mayor, which were aimed at the destruction of mad dogs, were valid, it Avas the duty of the marshal to kill all unconfined and unmuzzled dogs within the limits of the city during the time specified in the proclamation. The performance of this duty was not made to depend in any respect upon the method adopted by him to bring the dogs, obnoxious to the law, AAnthin reach of a destructive agency. It was his duty to kill such animals wherever found and to adopt any suitable means for that purpose. As there can be no imputation of perjury except as to material testimony, it follows that the-charge in plaintiff’s petition, Avhich the eAddence in this record shoAvs referred to his testimony as to a matter wholly immaterial to the issue in the case- . . where it Avas given, does not contain the necessary elements of slander by an oral charge of perjury which was the cause of action alleged in the petition, and hence the learned trial judge should have sustained defendant’s demurrer to the evidence. Eor his failure so to do, the judgment herein is reversed.

All concur.