Covington County v. Fite , 120 Miss. 421 ( 1919 )

Ethridge, J.,

delivered the opinion of the court.

. T. J. Fite sued Covington county for one hundred an'd twenty three, dollars in a justice of the peace court for injury to two cows alleged to have- been injured in a dipping vat. For alleged injuries received, the claim was presented to the hoard of supervisors and disallowed, and suit was brought in a justice of the peace court. The justice rendered judgment in favor of the owner of the cattle for one hundred and twenty dollars and the cause was appealed to the circuit court, where a trial was had and verdict and judgment rendered for sixty-five dollars, from which judgment this appeal is prosecuted.

The suit is founded upon chapter 38 of the Acts of the Extraordinary Session of the legislature of 1917. Amoung othei* errors complained of is an instruction for the plaintiff in the following language:

“The court instructs the jury for the plaintiff that, if you believe from a preponderance of the testimony that plaintiff’s cattle were permanently injured in the process of dipping, then the jury should find for .the plaintiff and assess his damage such as would compensate him for the injury done the cattle not in excess of the amount sued for, to wit, one hundred and twenty-three dollars.”

Chapter 38, Laws Extra Sess. 1917, reads as follows: “Section 1. Be it enacted by the legislature of the state of Mississippi, that any person in any county in this state shall be entitled to recover from such county reasonable compensation. for any live stock owned by such person that may have been killed or permanently injured since March 1, 1916, or that may hereafter be killed or permanently injured in the process of dipping or as a result of such dipping for the.eradiction of the cattle tick, where such dipping was done under the supervision of the board of supervisors or the livestock sanitary board.

“Sec. 2. That any owner of live stock making claim for damage for the death or injury of such live stock, shall first make proof of the amount of his loss or damage to the board of supervisors, and when conclusive proof has been made or submitted to the board and there being no evidence of contributory negligence on the part of the owner, and the board is satisfied that the said owner had suffered such loss, then the board of supervisors shall pay to such owner out of the general county funds, such amount as will compensate him for his loss or damage, but . if the board of supervisors shall refuse to pay such claims, or any part of them, the owner shall have the right of action against the county where such damage occjirred.”

It will be noted from the provisions of section 2 of the act that the owner of live stock making claim for damages for the death or injury of such live stock must make “conclusive proof” of the injury, and that it was caused by the cattle, being dipped. The question therefore presents itself as to whether the proof must be merely by preponderance of the evidence, or whether a higher degree of proof is required.

The legislature was conferring or creating a new .right of action against the county. It had the power to prescribe the condition upon which the right should be exercised, adjudicated, and enforced. The word “conclusive,” in its primary legal meaning, means beyond question or beyond dispute. “Conclusive evidence” is that which is incontrovertible, or that from which only one reasonable conclusion can be drawn taking all the facts and surroundings into consideration. It is synonymous with manifest, plain, clear, obvious, visible, apparent, indubitable, palpable, and notorious. See 12 C. J., 388; Black’s Law Dictionary (2d Ed.), p. 237; Words and Phrases, First and Second Series. We think in the present act it is equivalent to the expression “to a moral certainty,” or “beyond a reasonable doubt.”

The facts in evidence in this case are such that we are unable to say that the jury would not have found for the appellant had this standard or degree of proof been, required. There is such wide difference between the mere preponderance of evidence and conclusive evidence that we are unable to say that a different result could not have been reached had the true test of the degree of proof been stated to the jury, and the judgment is, accordingly, reversed, and the cause remended.

Reversed and remanded.