Summary
considering an ordinance designed to restrain and prohibit mules and other livestock from roaming at large within city limits and noting that this ordinance was a valid exercise of the city's police power, enacted in the interest and welfare of the public at large
Summary of this case from Patterson v. City of BellmeadOpinion
No. 5467.
July 13, 1939. Rehearing Denied July 20, 1939.
Error from Gregg County Court; Perry R. Meredith, Judge.
Action by Fred Beville against City of Longview to recover the value of a mule. To review a judgment for the defendant, the plaintiff brings error.
Affirmed.
Giles Harris, of Longview, for plaintiff in error.
Stinchcomb, Kenley Sharp and Fred Erisman, all of Longview, for defendant in error.
Members of the police department of the city of Longview, a municipal corporation, caught up and placed in its pound pen a stray mule roaming at large within its corporate limits. Thereafter the police department released the mule upon payment of the pound fee to a third party who fraudulently represented that he was the owner of the mule and that it had escaped from his premises near Greggton in said county. This third party, who gave his name as J. M. Davis, thus obtained possession. He has converted the mule to his own use and benefit by disappearing with the mule to parts unknown, leaving no trace of himself or the mule. In this suit Fred Beville, the owner of the mule, seeks to recover from said city a judgment for its value under the "respondeat superior" rule, asserting that the police were negligent in surrendering this mule to a person they were unacquainted with, without first obtaining proof that such third person was the true owner. The jury was instructed to return a verdict for defendant.
Under the provisions of Section 16, Article 1015, R.C.S. of 1925, defendant had established a public pound and duly passed an ordinance to restrain and prohibit mules and other live stock to roam at large within its corporate limits. The enactment of this ordinance was an exercise by the city of its police power, in the discharge of its governmental function. It was enacted in the interest and welfare of the public at large. Under this record, quoting from Whitfield v. City of Paris, 84 Tex. 431, 19 S.W. 566, 567, 15 L.R.A. 783, 31 Am.St.Rep. 69, "The maxim respondeat superior does not apply. Where a city acts as the agent of the state, it becomes the representative of sovereignty. It is not acting in the management of its private or corporate concerns, but in the interest of the public * * *. Under such circumstances, it is not liable for the acts of its officers * * * engaged in the execution of its ordinances." See, also, Smith v. Arnold, Tex. Civ. App. 251 S.W. 315, and authorities there collated.
The judgment is affirmed.