Barrett v. City of Mobile, 129 Ala. 179

Barrett v. City of Mobile

129 Ala. 179 | Ala. | 1900

SHARPE, J.

By the charter act of the city of Mobile (Acts, 1896-97, p. 542), it is provided “That no claim against the city of Mobile shall be sued on until a statement thereof, giving date of accrual, name and residence of original claimant, and of assignee, if any, circumstance-',s and amount, shall have been filed with the clerk for consideration of the general councilj and-either rejected by them or held for sixiy days without action.”

The word “claim” as used in this provision is comprehensive enough to include charges against the city arising in tort as Avell as ex contractu. The legislative intention was to protect the city from expenses of unnecessary litigation by affording it opportunity to settle and discharge its liabilities without suit. The same necessity exists for such protection in respect to *185torts as in other claims, and without applying the requirement to them the legislative intention cannot be wholly carried out.

The right to sue the city without first presenting the claim is taken away by the statute. In bringing suit the plaintiff should show by his complaint -a cause for which an action will lie. To that end the complaint should aver presentation according to the statutory requirement. For want of such averment the complaint in the present case was subject to the demurrer interposed to it as a whole.

We-are aware that there is conflict in the authorities both as to whether the word claims as used in statutes requiring presentation before suit, applies to tort and also as to the necessity of averring compliance with the requirement. We think, however, that our conclusions on both those questions are supported by the decision of this court made with reference to an analogous requirement respecting the presentation of claims against counties before suit, and found in section 13 of the present Code. See Schroeder v. Colbert County, 66 Ala. 137; Shinbone v. Randolph County, 56 Ala. 183.

Amendments to the complaint left it standing against the defendant Goode alone, on a count- in trespass joined with a count in trover, and not guilty was the ■only plea. The two causes of action proceed on different theories and are subject to dissimilar defenses.

In trespass do bonis asportatis as in other species of trespass a defense based on legal authority for the taking complained of is in justification of the act and like other pleas in confession and avoidance, must be pleaded specially; otherwise the defense is not allowed to be proved.—Womack v. Bird, 51 Ala. 504, s. c. 63 Ala. 500; Chitty Plead. (16 Am. ed.), 532. Though, the fact that the defendant acted under a supposed though invalid authority, may, according to the more recent decisions of this Court, be proven for the limited purpose of mitigating or preventing exemplary damages.—Stephenson v. Wright, 111 Ala. 579; Boggan v. Bennett, 102 Ala. 400.

In trover a valid authority for appropriation or destruction of property involved may be proven under the *186general issue and in bar of the action.—Gould’s Plead., § 57; 9 Bac. Abr., 672; Young v. Cooper, 6 Exch. 259; Kline v. Husted, 3 Caine (N. Y.), 275; Pemberton v. Smith, 3 Head. (Tenn.), 18; Miller v. Knapp, 19 Atl Rep. (Penn.), 555.

In Gould’s Pleading, supra, it is laid down that “as: the conversion, which is the gist of the action in trover is ex vi termini, a tortious act which cannot in law be justified or excused, it is manifest that any plea alleging matter of justification or excuse (as a license from the plaintiff — an authority derived from the law, etc.,) is equvalent to the plea of not guilty; since it must involve a denial of the conversion.”

There are decisions opposed to the admission -of such a defense without a special plea and the question seems not to have been expressly decided by this court, though as favoring the rule we announce, there is an intimation in Hopkinson v. Shelton, 37 Ala. 306, where in passing on a plea setting up that the property alleged to have been converted was taken under execution, the court said that in view of our statute allowing a plurality of pleas “it was no objection to the second plea that it amounted to the general issue.” A conversion is necessarily wrongful and cannot be justified. Where the appropriation is rightful there is no conversion; therefore a plea showing that fact directly contravenes the complaint, and is not in confession and. avoidance or in justification.

Under the pleading in the present case it was competent under the count in trover, and in bar of it. to show by proof if it existed that the animal was killed in pursuance of a reasonable police regulation in promotion of the public health. — Tiedeman on State and Fed. Cont Per. and Prop., 828.

The evidence actually introduced tending to show the defendant’s official character, the information on which and the circumstances under which he acted in ordering the animal to be killed Avere admissible under the count in trespass as tending to show he acted in good faith and as bearing on the question of exemplary damages. But the evidence did not tend to show an absolute defense to either count.

*187In a general way the duties and authority of county health officers are prescribed by chapter 58 of the Code. The powers given them as executive officers in respect of the destruction of property to prevent the spread of infectious diseases are required to he exercised “under the direction and control of the county board of health and in accordance with the health laws of the State.” § 2436. The county board of health may investigate “cases of malignant, pestilential, infectious, epidemic and endemic diseases occurring in the county, and the causes thereof ,and take such steps as may be necessary for their abatement or prevention.” — § 2429. “The court of county commissonersj or the proper corporate authorities of any city or town, may, jointly or separately, invest the county board of health Avith such executive poAAers and duties as may be deemed necessary for the preservation and promotion of the public health, and for the prevention of the introduction or spread of' contagious or infectious diseases; such poAvers to be exercised, ' and such duties to be performed under such rules and regulations as may be determined upon between such board and such court, or corporate authorities.” — § 2431. And the charter of Mobile provides that the general council “maj make, ordain and declare such by-laAvs and ordinances for and concerning the removal of nuisances and the prevention and extinction of contagious or infectious diseases, and in giving effect to these powers may act in co-operation with the board of health.” In the absence of some regulation made or special authority conferred by the board of health, the court, or the corporate authorities, the health officer* of Mobile as such has no authority to destroy property Avliether infected or not, except when acting under a warrant from a justice or mayor as provided by section 2393. Here there aa*us nothing to show that the defendant Avas authorized in either of the modes indicated, or in any legal mode, to order the destruction of the animal; consequently there Avas nothing to justify that action or to dhest it of a tortious aspect and the plaintiffs right to recover was made out. Therefore, the refusal to instruct the jury affirmatively in her favor-*188was error for wliicli the judgment must be reversed. It is unnecessary to specifically pass on the other charges.

Let the judgment be reversed and the cause remanded.