Pearl River County v. Wheat ( 1923 )

Holden, J.,

delivered the opinion of the court.

This is an appeal from a judgment for seventy-five dollars against Pearl River county, claimed as damages for-an ox alleged to have been killed or died as a result of dipping; the right of action in such cases being given by chapter 38, Law's of 1917.

Reversal of the judgment is urged upon two grounds: First, the evidence introduced by the plaintiff below was insufficient to establish the fact that the ox died as a result of the dipping; and, second, the instruction granted the plaintiff failed to tell the jury that the proof required under the statute must be conclusive or beyond a reasonable doubt. We shall only pass upon the first point presented, which will end the case.

We have carefully considered the testimony in the 'record offered by the plaintiff below to support his claim that the ox died from the effects of the dipping, and, without detailing the evidence, we think the proof was insufficient to sustain the verdict of the jury, in view of the requirement of the statute (section 2, chapter 38, Laws of 1917), giving the right to sue, which provides that the proof of injury and loss through dipping must be conclusive.

As said in Covington County v. Fite, 120 Miss. 421, 82 So. 308, the proof must establish the claim “beyond a reasonable doubt,” “to a moral certainty,’.’ before recovery can be had in such cases. The proof in the case before us does not reach the degree of evidence inquired. There is no substantial proof, either direct or circumstantial, that the ox died from poison received in the process of dipping, nor that his death, seven days after the dipping, had any proximate connection with the dipping. The loss is regrettable, but cannot be charged against the county under the law.

Reversed, and judgment here.