Davis v. Lamar County

• Decision Date: 19 October 1914
• Citation: 107 Miss. 827,66 So. 210
• Court: Mississippi Supreme Court
• Parties: DAVIS v. LAMAR COUNTY

66 So. 210

107 Miss. 827

DAVIS v. LAMAR COUNTY

Supreme Court of Mississippi

October 19, 1914

October 1914

APPEAL from the circuit court of Lamar county. HON. A. E WEATHERSBY, Judge.

Suit by H. Davis against Lamar county. From a judgment for defendant plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Tally &amp Mayson, for the state.

We have never before heard the contention advanced that section 311 applied to any sort of a claim against the county, except actions arising ex contractu. The appellant here was suing for a tort, pure and simple, to recover unliquidated damages; so then it would have been useless, and the law never contemplated that the party claiming to be damaged should present a claim to be passed upon. It is different where the claimant's relations to the board is that of a contractor. If he is a contractor, why, then the amount to which he would be entitled must have been agreed upon in advance, and the only question that could be raised with the board would be as to whether the contract had been executed according to its term. It is also to be observed that whether it was or was not necessary to lodge a claim with the board for injuries of this character, that the proposition as to whether it was done or not is a matter of proof to be raised by pleas, because the presentation and rejection of the claim could rest in parol. Brookhaven v. Lawrence County, 55 Miss. 189.

Salter & Hathorn, for appellee.

What was the legislative intent and purpose in enacting said section 311 of the Code of 1906? Evidently said section was intended and designed to protect and guard the county against the expense of unnecessary litigation by giving it the right and opportunity of having claims of whatever kind and character presented to the board of supervisors, and thereby enabling the county to settle meritorious demands or claims without suit. We can conceive of no other reason or necessity for the existence of said section. What good or valid reason can be advanced for having "claims," based upon matters arising ex contractu, presented to the board of supervisors for adjudication, thereby affording the county an opportunity to avoid the expense of litigation and at the same time, denying the county the same right and privilege upon "claim" arising out of matters of tort, for no other reason than that such claims represent unliquidated damages? We submit that the proposition is absurd upon its very face. The same necessity exists for protecting the county from the expense incident to suits based upon matters arising out of torts, as in cases of claims ex contractu. Such course would certainly defeat, to a large extent, the legislative intent, prompting the legislature to enact said section.

So far as we are able to ascertain from an exhaustive search of the records, and a careful study of the very able briefs of counsel for appellant, our supreme court has never been called upon to pass upon the precise question of whether or not there exists a distinction under section 311 of the Code of 1906 between "claims" ex contractu, and those based upon torts. But the general rule is that a county is not liable for torts, in the absence of statute expressly or by necessary implication, declaring the liability. 7 Am. & Enc. of Law, 41; 11 Cyc., 497; 54 Miss. 363.

We have no statute expressly nor by necessary implication, declaring a county liable for torts. Our legislature has, however, in its wisdom provided a remedy by which when ones own property has been injured or destroyed, he may obtain redress for his injury. But to avail himself of the benefits thereof, he must comply with all the provisions of the statute. The legislature has said that one having a just claim against the county shall present it to the board of supervisors, for allowance, as a condition precedent, to bringing suit. The requirement is a just and reasonable one, and until a party has met the requirements of the statute, no court hath jurisdiction to entertain his suit. Counsel for appellant says in their brief, that even if it is necessary to present the claim to the board of supervisors for allowance that the question of whether or not it was so presented is a question of proof, and cannot be raised by demurrer, and they cite the case of Brookhaven v. Lawrence County, 55 Miss. 189, in support of their contention. We have examined closely and carefully that decision and find that the question of...