Pippin v. Clarke County , 124 Miss. 728 ( 1920 )

Ethridge, J.,

delivered the opinion of the court.

The appellant brought a suit in the justice of the peace court against Clarke county for the value of a cow alleged to have been killed .from drinking the fluid in a dipping vat during the process of dipping. There was a judgment for the plaintiff in the justice of the peace court from which an appeal was prosecuted to the circuit court. On the trial in the circuit court it appeared that Clarke county was conducting the work of tick eradication at the time of the alleged injury, having a county inspector who appointed certain deputy or. assistant inspectors. The rules provided for dipping at the particular vat where the injury is said to have occurred on certain Saturdays, being two weeks from one dipping day until another. On one of the Saturdays a deputy inspector attended the vat where the injury occurred and supervised the dipping of the cattle in the community on that day. Mr. Pippin’s cattle were not brought to the dipping vat on that day for dipping, and when the dipping was concluded by the inspector he went to the house of Mr. Pippin to inquire the reason for his failure to dip his cattle. Mr. Pippin was not at home, buit his son told the inspector that the reason they did not dip> was that the cattle had been turned out on the range to graze and could not be located. The inspector then informed young Pippin that his father had better dip his cattle, and, according to the young man, directed them to do so on Monday, and on the following Monday the cow in question was carried to the dipping vat and dipped by Mr. Pippin with the aid of some helpers, the dipping inspector not being present at the time.

When the cow was started into the dipping vat one of her feet got caught in something, causing her to plunge into the dipping vat headforemost. She came, out of the vat apparently limping and was carried some distance from the dipping vat by the son of the plaintiff and left on the range. On Monday afternoon the cow failed to come home, and a search was instituted, and she was found dead. She was cut open,- and' in her stomach was found two or three cupfuls of a dark fluid resembling the fluid in the vat, but no test was made of the fluid to determine whether or not it ivas the fluid of the dipping vat.

The board of supervisors refused to pay the claim for the cow and suit was brought as above stated. At the conclusion of the evidence on motion of the county the court granted a peremptory instruction for the county, upon which a verdict was rendered and judgment entered denying the claim, from which judgment this appeal is prosecuted.

The action is brought under chapter 38 of the Laws of Extra Session of Mississippi of 1917, which provides that any person in.any county 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 as a result of dipping for the eradication. of cattle ticks “where such dipping was done under the supervision of the board of supervisors or the Live Stock Sanitary Board.”

Was the dipping in the present case done under the supervision of the board of supervisors or the Live Stock Sanitary Board within the meaning of this provision? The inspector of the county was not present at the dipping, and had nothing to do with it except to direct that the owner who had failed to dip at the time required by the rules should dip his cattle on the following Monday.

We do not think the case comes within the statute. The liability is imposed where the dipping is done under the supervision of the agent of the county or the Live Stock Sanitary Board. In the present case the dipping was done by the owner, and the owner did what supervising was done in the present case. The intention of the statute, taking it as a whole, is to compensate the owner for an injury resulting from the negligence of the county or the Live Stock Sanitary Board free from contributory negligence on the part of the owner. It did not intend to compensate the owners for losses resulting from their own negligence. If there was any negligence in the present case, it was the negligence of the owner. There is no pretense in the record that the fluid was not properly prepared, and no agent of the county or of the Live Stock Sanitary Board was present at the dipping. It is doubtful whether the evidence would show with sufficient certainty that the death resulted from drinking the fluid, but we do not base our decision upon this question, but base it upon the proposition that the owner has not brought himself within the terms of the statute.

The judgment will accordingly be affirmed.

Affirmed.