Simpson County v. Kelly

• Decision Date: 16 March 1936
• Docket Number: 32142
• Citation: 166 So. 532,175 Miss. 596
• Court: Mississippi Supreme Court
• Parties: SIMPSON COUNTY v. KELLY

166 So. 532

175 Miss. 596

SIMPSON COUNTY v. KELLY

No. 32142

Supreme Court of Mississippi

March 16, 1936

Division A

1 COUNTIES.

Although minutes of board of supervisors must show allowance of sum to be paid out of county treasury, rejection of a claim need not appear on minutes of board (Code 1930, section 253).

2 COUNTIES.

Discretion is vested in board of supervisors to refuse or allow claims and to prove such refusal by parol (Code 1930, section 253).

3 COUNTIES.

Where county was authorized by legislative enactment to pay injured county employee any sum not exceeding two thousand dollars, payments by county board of supervisors which were referred to as "part payment" for employee's injuries did not constitute a contract with employee to pay him the full two thousand dollars authorized by Legislature (Loc. & Priv. Laws 1930, chapter 513, section 1).

4. COUNTIES.

Counties are not liable for negligence or tortious acts of their officers and agents except as authorized expressly or by necessary implication by some statute.

HON. EDGAR M. LANE, Judge.

APPEAL from circuit court of Simpson county HON. EDGAR M. LANE, Judge.

Action by Lem Kelly against Simpson county. From an adverse judgment, the defendant appeals. Reversed and dismissed.

Reversed, and cause dismissed.

A. M. Edwards, of Mendenhall, for appellant.

The court erred in overruling defendant's motion asking that it be allowed to file the plea of the general issue and its special plea as shown by the record.

Section 547, Code of 1930; Universal Motor Co. v. Newton County, 131 So. 827.

The order of the board of supervisors was competent evidence in the case, and the court committed error in sustaining the objection of the plaintiff to the introduction of same.

The special act of the legislature, which is copied in and made a part of plaintiff's declaration, authorized the board of supervisors of Simpson county, in its discretion, to pay a sum to the said Lem Kelly not to exceed two thousand dollars.

We submit that under the law the board of supervisors was not compelled to make plaintiff any allowance whatever on his claim but the matter was left entirely in the discretion of the board of supervisors, and when the board paid plaintiff the sum of three hundred forty dollars and refused to make any further payment on said claim, this was within the power and discretion given it by said act of the legislature, and when it exercised its discretion in the matter and allowed said sum, the county, appellant, was not liable to plaintiff for any further sum, and plaintiff's suit is not maintainable as made by his declaration.

Where a discretion is left in an inferior tribunal as it was in the case at bar, such tribunal can only be compelled to act, but the discretion cannot be controlled.

Madison County v. Alexander, Walker, 523; Attala County v. Grant. 9 S. & M. 77; Swan v. Gray, 44. Miss. 383; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State v. West Point, 50 Miss. 638; Monroe County v. State, 63 Miss. 135.

R. T. Hilton, of Jackson, and J. B. Sykes, of Mendenhall, for appellee.

The first defense, which appellant desired to plea, of the payment of one hundred and thirty dollars could in no wise be pleaded in this suit because this suit was -not based upon the Act of 1928 under which the one hundred and thirty dollars was paid. The Act of 1928 has been fully complied with and was a dead letter so far as the power of the board to act further. No release was necessary upon the payment of the one hundred and thirty dollars and no acquittance of liability could be valuable because there was not any liability. So when the Act of 1930 was passed and the board undertook to act under that law, the terms of that special act granted every power and right which the appellee had to claim any compensation and granted every power and right which the county had to grant or refuse compensation.

The second defense, which it sought to plead, that it was in no way the cause of the plaintiff being injured, that could not be and was not a defense. This suit was not based on the idea that the county was liable for the injury as for a tort.

The county's duty was based solely upon a special act which it had partially performed and had so stipulated in its orders and had refused to complete the performance of it in its discretion as it was bound to do after undertaking to do so. So we contend that it was entirely proper to overrule the motion to file these pleas. And it will be remembered that no other pleas were tendered and it was not intimated that any other defenses existed.

State for the use of Netterville v. Junkin, 159 So. 864.

We agree that if the board of supervisors had ever refused to pay anything after having the account filed by rejecting the account and taking a proper order thereon, that would have been the end of it. We agree with the statement of counsel that if the board had refused to consider the matter after the account was filed under the special act that they could have been compelled to have passed upon it, but whether they would allow or reject or the amount they would allow could not have been controlled; but that is not the question we have here. We have in tiffs case the proposition that the board considered the account; that they chose in their discretion to announce that appellee should be compensated and they chose to announce that (while we will not say just how much) we will start to paying this compensation; that we now decide he is entitled to compensation under the special act and we now begin such payment, saying in every order that it was part payment.

The orders of the board of supervisors not being a complete and a perfect adjudication of the matter between the appellant and the appellee, and perhaps the orders were defective or invalid, then under these circumstances it was the duty of the courts to step in and complete the adjudication of the board's discretion which it had obligated itself to exercise and adjudicate the proper or reasonable amount due.

Newton County Bank v. Perry County, 99 So. 513, 135 Miss. 139.

Argued orally by A. M. Edwards, for appellant, and by R. T. Hilton, for appellee.

OPINION

McGowen, J.

Lem Kelly, appellee, filed a declaration against Simpson county, "through its Board of Supervisors," for one thousand six hundred sixty dollars as damages for personal injuries received by him, which were occasioned by the negligence of its officers and agents in repairing a bridge.

Simpson county, appellant, filed a demurrer to this declaration, which was overruled, and the court granted the county time in which to plead. Instead of pleading, the county appealed from the order overruling the demurrer to this court, where the appeal was dismissed. Thereupon the county sought to file further pleas, and its motion so to do was overruled. A writ of inquiry was issued, and there was a judgment assessing Kelly's damages at one thousand six hundred sixty dollars, from which the county has prosecuted an appeal here.

We are of the opinion that the demurrer to Kelly's declaration should have been sustained. This declaration, in substance alleged that the board of supervisors was engaged in repairing a bridge across Strong river, on which the appellee was working, and that these repairs were being done in such a careless and negligent manner as to impair the safety of the employees. According to Kelly, a span of the bridge was overloaded with lumber, and, due to the negligence of the officers and agents of the county in not exercising proper precaution for the safety of its employees, this span fell and Kelly was greatly...