Opinion
No. 33099.
March 7, 1938. Suggestion of Error Overruled March 21, 1938.
1. EVIDENCE.
In statutory action against county for death of cattle from dipping for cattle tick eradication, opinion of owner of cattle that cattle died from pneumonia caused by dipping, based on owner's knowledge of facts and experience and observation, was admissible, notwithstanding that owner did not qualify as an expert (Code 1930, section 265).
2. APPEAL AND ERROR.
Under statute providing that payment of mortgage indebtedness extinguishes mortgage and revests title in mortgagor, in statutory action against county for death of cattle from dipping for cattle tick eradication, wherein evidence established that indebtedness secured by mortgage on cattle was paid, exclusion of mortgage from evidence was not erroneous (Code 1930, sections 265, 2152).
3. ANIMALS.
Under statutes giving right of action for death of livestock from dipping for cattle tick eradication, and requiring plaintiff to make out his case by "conclusive proof," refusal of instruction that plaintiff was required to prove his case "beyond a reasonable doubt" was erroneous, "conclusive proof" being the equivalent of proof "to a moral certainty" or "beyond a reasonable doubt" (Code 1930, sections 265, 266).
4. ANIMALS.
In statutory action against county for death of cattle from dipping for cattle tick eradication, conflicting evidence as to whether cattle died from pneumonia caused by dipping or from natural causes made case for jury (Code 1930, section 265).
APPEAL from the circuit court of Jackson county. HON.W.A. WHITE, Judge.
H.P. Heidelberg, of Pascagoula, for appellant.
We submit to the court that allowing the appellee to testify that the cattle died with pneumonia without he could qualify as an expert or rather as a veterinarian, was highly prejudicial and error. Veterinary science is a well developed and recognized science at this time. It is so regarded in Mississippi as well as practically all the other states in the Union and the requirements to be allowed to stand the examination requires at least as much, if not more, special training than is required of applicants for admission to the bar, see chapter 174 of the Code of 1930, and yet under the rulings of the lower court the appellee without being required to offer any person whatever as to training experience or knowledge was allowed to testify that the cattle in question died from pneumonia as a result of being dipped.
The next assignment of error is the sustaining of the objection of the appellee of the evidence offered by the appellant, this being particularly with reference to the exclusion of the deed of trust given by the appellee and his wife upon a large number of cattle. We submit that this was an error upon the part of the court below as the deed of trust was at the time of the trial so far as the record disclosed uncancelled or unsatisfied and by virtue thereof, the legal title to at least 14 of the 15 cattle that appellee is suing for were embraced in the deed of trust.
The first instruction given for the appellee instructed the jury "that you are the sole judges of the evidence, and if you believe from all the evidence before you that the cattle sued for, death was caused from dipping and that dipping was done under the law and in obedience to demands made by the livestock inspector, then you must find for the plaintiff." Another instruction asked for by the appellee given by the court instructed the jury "the court instructs the jury for the plaintiff that, if you believe from the evidence in this case that the dipping of the cattle sued for was the proximate cause of their death as alleged, then you shall find for the plaintiff and assess such damage as in your opinion he sustained by the loss by death of said cattle." We submit that both of these instructions violated not only Section 266 of the Code, which provides that the owner must make "conclusive" proof, but it also violates the rule as laid down by the Supreme Court in its construction of said statute.
Covington County v. Fite, 120 Miss. 421, 82 So. 308; Covington County v. Pickering, 123 Miss. 20, 85 So. 144; Franklin County v. Middleton, 140 Miss. 423, 105 So. 856.
A reading of the Fite case, 120 Miss. 421, especially the brief of counsel, discloses the fact that the question was gone into fully, both sides presenting not only numerous authorities but also in the presentation of their respective contention and the court in construing section 2 of the act which is section 266 of the present code, placed the burden upon the owner, the appellee herein, of submitting conclusive proof and in defining conclusive proof, the court among other definitions thereof used "beyond a reasonable doubt" and we submit the granting of the two instructions to the appellee complained of and the refusal of the instruction requested by the appellant and confining appellant to the fifth instruction in its favor, that is, "a preponderance" of the evidence, was error upon the part of the court below clearly and unmistakably in the light of the decision cited above.
We respectfully submit, first, that the court should have sustained appellant's motion to exclude the evidence offered by appellee and directed a verdict for the appellant and should have, second, granted appellant's peremptory instruction.
Doty Doty, of Biloxi, for appellee.
Counsel for appellant has a great deal to say about the appellee testifying that his cattle died with pneumonia a short time after they were dipped. Upon the theory that he being just a plain dairyman and not a veterinarian that his testimony should have been excluded from the jury. Appellant also complains about the court not giving a directed verdict for the defendant, Jackson County, on the testimony of his expert veterinarian. We cannot understand how the court would have been justified in giving a directed verdict when the expert did not see the cattle and did not have a history from anyone as to the cause of their death or what seemed to be their condition just prior to death. In fact, they did not undertake to testify about what caused the death of the cattle. Not having seen the cattle, they could not say. The next assignment of error presented by the appellant is that the court was not justified in sustaining the objections of the appellee to the evidence of a certain deed of trust offered by the appellant in an attempt to show that the title to the cattle sued for were in a trustee. We do not understand how the court could have overruled the objection to this character of testimony when the appellee had testified that the cattle were not under mortgage, that the notes had been paid and released, and there was no proof to the contrary.
Appellant has a great deal to say about reasonable doubt, that the same degree of proof is necessary in a case of this kind as would be in a criminal case and that this court has held that proof must be made that the cattle died from dipping and that that fact must be proven beyond a reasonable doubt.
The cases cited by counsel for appellant are not in point so far as the issues involved in the present case are concerned. Covington County v. Pickering, 123 Miss. 20, 85 So. 144, is the case relied on by appellant to reverse this case. If the facts in these cases were not so different from the facts in the present case, there might be some ground for his argument, but the facts are so different in every respect that we cannot apply the law in those cases to the facts in this case.
Argued orally by H.P. Heidelberg, for appellant.
Appellee brought this action against appellant in the circuit court of Jackson county to recover the alleged value of fifteen head of cattle which the declaration charged died of pneumonia as a result of having been dipped in the Yeager vat in that county, under the compulsory dipping law for the eradication of the cattle tick. The amount sued for was $660, and the recovery $330. From that judgment appellant prosecutes this appeal.
The suit was brought under the authority of section 265, Code of 1930, which is in this language: "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, 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 live stock sanitary board."
The defense was that the cattle were emaciated, weak, and in very poor condition and died of natural causes and not as the result of the dipping, and, furthermore, that the title to them was in one Stennis, trustee in a mortgage which appellee had give on them and which remained on record uncanceled. Fifteen cattle died after the dipping, one on the same day and the others the day after. Appellee testified that they died of pneumonia. Appellant objected to his testimony on the ground that he did not qualify as an expert. The court overruled the objection. That action of the court is assigned as error. On such an issue of fact nonexpert testimony is admissible based on knowledge of the facts and experience and observation; it goes for what it is worth along with any expert testimony. Gathings v. Howard, 122 Miss. 355, 84 So. 240; Ward v. Ward, 124 Miss. 697, 87 So. 153. Although it was not as plainly developed as it should have been that appellee was speaking from a knowledge of the facts in connection with experience and observation, his testimony is to that effect.
The exclusion of the mortgage was not error. The evidence showed that the mortgage indebtedness had been paid. Under section 2152, Code of 1930, payment of a mortgage indebtedness extinguishes the mortgage and revests the title in the mortgagor as effectually as if reconveyed.
Appellant sought to have the court instruct the jury that he had to prove his case beyond a reasonable doubt. The court declined to do so. That action of the court is assigned as error, and is well founded under the authority of section 266, Code of 1930, which provides that in such suits the plaintiff must make out his case by "conclusive proof." This statute was construed in Covingington County v. Fite, 120 Miss. 421, 82 So. 308, 309, where the court held that conclusive proof was the equivalent of "to a moral certainty" or "beyond a reasonable doubt."
Appellee was not entitled to a directed verdict on the issue of liability. There was ample testimony on behalf of appellant by expert witnesses that the cattle died, not as the result of the dipping, but from natural causes; that pneumonia, if caused by dipping, would not follow as quickly after the dipping as appellee claimed.
Reversed and remanded.