Brummell v. Harris
| Decision Date | 14 May 1901 |
| Parties | BRUMMELL v. HARRIS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.
Affirmed.
O. G Bain and O. G. Williams for appellants.
(1) The court should have set aside the verdict and granted the defendants a new trial for the reason that the verdict was contrary to the evidence and the unquestionable weight of it and was rendered in absolute disregard of the instructions of the court, and manifestly "the result obtained by the verdict must thereupon be ascribed to prejudice, passion or partiality and not to that calm weighing of the facts in evidence which should always characterize the deliberations of the jury." State v. Primm, 68 Mo. 372; Reichenbach v. Ellerbe, 115 Mo. 594; Garret v Greenwell, 92 Mo. 125; Whitsett v. Ransom, 79 Mo. 260; Avery v. Fitzgerald, 94 Mo. 216. (2) There was undoubted error in giving the third instruction for plaintiff, in that, by its terms the two defenses of defendants, limitation and agreement, were hopelessly confused and jumbled together. This as a general proposition was error. Defendants were entitled to have the two defenses "sharply, clearly and pointedly" presented to the jury. Mullally v. Greenwood, 127 Mo. 149. (a) And as specially applied to this case, in view of the language of the opinion on a former appeal, was glaringly erroneous. Brummell v. Harris, 148 Mo. 440. (b) "Instructions must be considered with reference to possibilities of their interpretation." State v. Bank, 9 Mo.App. 491. (c) Crole v. Thomas, 17 Mo. 332. (d) Instructions calculated to mislead or confuse the jury should not be given. Donahoe v. Railroad, 83 Mo. 566. (3) The court should have given instructions in the nature of a demurrer to plaintiff's whole case or a peremptory direction for the jury to find for defendants. Jackson v. Hardin, 83 Mo. 175; Powell v. Railroad, 76 Mo. 80; Harris v. Woody, 9 Mo. 113; Lee v. David, 11 Mo. 114; Alexander v. Harrison, 38 Mo. 358; Holman v. Railroad, 62 Mo. 562; Callahan v. Warne, 40 Mo. 131; Singleton v. Railroad, 41 Mo. 465; Bell v. Railroad, 72 Mo. 50; Maher v. Railroad, 64 Mo. 269; Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 491; Proffat on Jury Trials, secs. 351-354; Railroad v. Houston, 95 U.S. 697; Landis v. Hamilton, 77 Mo. 554; Reichenbach v. Ellerbe, 115 Mo. 594; Long v. Moon, 107 Mo. 338; Hite v. Railroad, 130 Mo. 132.
Harber & Knight and Hugh C. Smith for respondent.
(1) (a) The verdict is sustained not only by the weight, but by the vast preponderence of the testimony. (b) And even if it were not, it is not enough to warrant the reversal of the judgment of the trial court that the verdict be against the weight of the evidence. Hahn v. Cotton, 136 Mo. 225; Grant v. Moon, 128 Mo. 47; Grace v. Railroad, 156 Mo. 301. (c) An insufficiency of the evidence even "unless there is no evidence tending to establish the fact found by the jury" is not enough to warrant a reversal. James v. Life Assn., 148 Mo. 16. (d) "And the appellate court in determining the evidence in support of a verdict for plaintiff will, laying aside defendant's controverting evidence, assume that plaintiffs' evidence is true, and give to it every favorable inference which may be reasonably and fairly drawn from it." James v. Mut. Assn., supra. (e) This court will not undertake to pass upon the sufficiency of the evidence unless there has been an entire failure of proof. State v. Fischer, 124 Mo. 462. (f) Much more force, then, will be given to the precedents in the foregoing paragraphs when they are considered in the light of the fact that this is the second appeal upon substantially the same evidence. The ruling of this court on the first trial as to the sufficiency of the evidence, is in the nature of res adjudicata and conclusive. Kerr v. Cushenbery, 69 Mo.App. 223. (g) There having been two successive verdicts in favor of the same parties on the same evidence, this court is precluded from again reviewing the evidence. R. S. 1899, sec. 801; Costigan v. Michael Trans. Co., 38 Mo.App. 222. (2) Respondent's third instruction is a succinct statement of the law of this case in conformity to this court's opinion when the case was here before, and comes up to the standard set by appellants; but if respondent's counsel were not "happy" in the choice of the language in which it was couched, appellant's polished counsel have certainly, in the instructions numbered 2, 3, 4, 5, 6 and 8, tendered the same issues in a manner that they can not, and this court will not, find fault with. Brummell v. Harris, 148 Mo. 430.
This is the second appeal of this case to this court. The decision on the former appeal is reported in 148 Mo. 430, 50 S.W. 93, and the former judgment in plaintiff's favor was then reversed because of errors in the instructions given for the plaintiff, and for vagueness in the judgment in regard to the land ordered restored by the judgment. Upon a trial anew in the circuit court the plaintiff again obtained judgment, and defendants have appealed a second time.
The action is in ejectment for a strip of land alleged in the petition to be twenty feet wide and lying in the north half of the northwest quarter of section thirteen, the west half of the southeast quarter of section twelve, and the northwest quarter of the northeast quarter of section thirteen, in township sixty-one, range twenty-four, in Grundy county. The petition is in the usual form. The amended answer, filed since the former decision in this case, is a general denial, a special plea of the establishment, in 1863, by agreement between the then adjoining owners, of a dividing line between the land of the plaintiff's grantors and the defendants' land, followed by a continuous occupancy, according to the line so established, by the respective owners ever since, a plea of the ten years' statute of limitation, and a disclaimer of possession or right of possession of or to any land lying west of the established line. The reply is a general denial.
The following plat, made by Brown, the former county surveyor, gives a clear understanding of the land in dispute:
[SEE ILLUSTRATION IN ORIGINAL]
The section line is shown by the heavy straight line; the line alleged to have been established in 1863 is shown by the waving line, from the north end to the wagon road and represents the location of the old worm fence; the waving line from the wagon road to the railroad represents a hedge which was planted west of the old line; and there is now a wire fence a few feet west of the hedge. The waving line south of the railroad represents the old worm fence; and the broken straight lines represent the wire fence extending the whole distance from north to south.
The decision of this court on former appeal was the law of the case upon the trial anew in the circuit court, so far as the facts presented were the same. [Hennessy v. Brewing Co., 145 Mo. 104, 46 S.W. 966; May v. Crawford, 150 Mo. 504, 51 S.W. 693; Bealey v. Smith, 158 Mo. l. c. 515, 59 S.W. 984.] The circuit court complied with this rule and corrected the errors pointed out in the former trial. The defendants amended their answer so as to expressly disclaim as to the land lying west of the agreed line established in 1863. The evidence offered on the second trial showed that the Brown survey established the section lines and that those lines were shown by corner stones, tally stakes, and blazed trees. The verdict of the jury described the land awarded to the plaintiff as lying between the wire fence and hedge on the west, and the section or survey line on the east, and the judgment followed the verdict, so that the sheriff would have no difficulty in ascertaining the boundaries of the land to be restored to the plaintiff.
There is no substantial conflict in the evidence that in 1863 the true dividing line was unknown to the then adjoining owners, and that in order to settle their respective rights they got together and agreed upon a dividing line and staked it out, and built a worm or mortised fence on the line so established, and each agreed thereafter to conform to the line so established. But there is also no conflict in the evidence that they did not adhere strictly to that line, but from time to time thereafter when the hedge was planted and when the wire fence was constructed the defendants ignored the established dividing line and encroached upon the land of the plaintiff and his grantor. It is this encroachment that the defendants seek to remedy by disclaiming any right or title thereto. The jury, however, did not stop with awarding possession of so much as had been so encroached upon and disclaimed, but went further and found for the plaintiff for all the land in the defendants' possession that lies west of the section line, which embraced not only the part so disclaimed, but also the part which lies between the established dividing line and the true or section line.
This verdict may, perhaps, have been induced by two material facts that are disclosed by the testimony: first, that after the Brown survey had marked the section line, the plaintiff three times set his fence on that line and each time the defendants chopped it down and threw it back on plaintiff's land and threatened him with violence if he attempted to put it up again; and, second, by the fact that although the defendants,...
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