Black v. Stone County Lumber Co., 38690

• Decision Date: 08 June 1953
• Docket Number: No. 38690,38690
• Citation: 65 So.2d 256,216 Miss. 844
• Parties: BLACK v. STONE COUNTY LUMBER CO.
• Court: Mississippi Supreme Court

Page 256

65 So.2d 256

216 Miss. 844

BLACK v. STONE COUNTY LUMBER CO.

No. 38690.

Supreme Court of Mississippi.

June 8, 1953.

J. Boyce Holleman, Wiggins, for appellant.

Jo Drake Arrington, Gulfport, for appellee.

LOTTERHOS, Justice.

Appellee has filed a motion to correct the judgment heretofore entered in this cause, setting up as a basis that Archie Fairley, one of the two newly discovered witnesses on account of whom this Court held in the original opinion, 63 So.2d 405, that a new trial should have been allowed, has died, and that his testimony, not having been perpetuated, will not be available on a new trial. Although his indicated testimony was of considerable weight in the decision of this case, and appellant may possibly be unable to prove essential facts on a new trial without him, yet we do not feel justified in modifying our original judgment on account of his death. We decided the case on the record submitted to us, and considered the rulings of the trial court in the light of the facts and proceedings therein shown. That we must do. As was pointed out in Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837, this Court 'acts and must act only on the record as it is certified to us by the clerk of the trial court.'

Referring now to the suggestion of error, we find that appellee takes exception to the following language in the opinion : 'There was a disputed question of fact as to whether appellee required appellant to leave the tractor under the mill shed. Assuming that appellee made this requirement * * *.' Appellee contends that there was no proof that appellant was required to leave the tractor at the mill at night, and therefrom argues that there was no relation of bailor and bailee. If we should agree with appellee that appellant was free to remove the tractor from the mill premises after working hours, nevertheless it would not follow that our original decision was wrong. We held that appellant should have a new trial, based on newly discovered evidence, because it was our view that such evidence, as disclosed in the affidavits, would probably be sufficient to make a jury issue of negligence as the proximate cause of the destruction by fire. In our opinion, proof of such negligent burning would take plaintiff's case to the jury, whether or not he had the privilege of removing the tractor at night if he wished to do so.

Motion to correct judgment overruled; and suggestion of error overruled.

McGEHEE, C. J., and ROBERDS, HALL, and...