114 Mo. App. 449 | Mo. Ct. App. | 1904
Plaintiff’s cow escaped from his pasture and went upon the streets of the city where she was found and taken charge of and put in the city pound by a city officer. The officer refused to surrender the cow to plaintiff unless he would pay the costs incident to impounding her. Plaintiff refused and brought the present action of replevin and recovered judgment in the trial court. The evidence tended to show that the escape was not through any negligence of plaintiff and was unavoidable. That immediately upon discovering the escape he set out in search of her with the purpose of again confining her within his enclosure.
The first section of an ordinance of the city provides that whoever shall permit his domestic animals to run at large within the city limits shall be deemed
The case is practically identical with that of Spitler v. Young, 63 Mo. 42, wherein it was decided that the owner whose animals unavoidably escaped into the streets of a city or town and were straightway sought by him could sustain replevin without paying the cost qf impounding. The same view was taken of a case, substantially identical, by the Supreme Court of Illinois. [Kinder v. Gillespie, 63 Ill. 88.]
But an entirely contrary view was taken by the St. Louis Court of Appeals in McVey v. Barker, 92 Mo. App. 498. It is there held that notwithstanding an unavoidable escape of animals on the streets of a town or city, the proper official may impound them and hold them against the owner until he pays the cost of impounding. That case was affirmed by the same court in Jeans v. Morrison, 99 Mo. App. 208. The charter governing that case was not broader or more comprehensive than the charter governing Spitler v. Young, found in Laws of 1874, p. 409, section 11, as is apparent from the opinion in the latter case.
The truth is, that conditions have changed since the Spitler case and the Kinder case were decided by the Supreme Courts of Missouri and of Illinois, respectively. Reasons exist now which were not recognized as existing, in Missouri at least, at the date of those decisions; and unreasonable and unjust consequences would now follow from the construction then placed upon laws and ordinances for the restraint of stock which would not
. Authority to impound an animal found at large is totally different and distinct from authority to convict the owner of an offense. [McVey v. Barker, supra; Sloan v. Hubbard, 34 Ohio St. 583; Jeans v. Morrison, 99 Mo. App. 208.] For the latter requires guilt, and guilt does not attach to an act which is unavoidable; while the mere fact of an animal being at large, with or without the consent of the owner, imposes a necessity that it should be immediately restrained.
In the conflict between the Supreme Court and the St. Louis Court of Appeals, we must, of course, follow the former. And as the case was tried in conformity to the view taken by the Supreme Court, we will affirm the judgment. But as we are thus brought in conflict with the St. Louis Court of Appeals in McVey v. Barker, 92 Mo. App. 498, and as it is quite important that the ques