Byrd v. Masonite Corporation, 38839
| Decision Date | 16 November 1953 |
| Docket Number | No. 38839,38839 |
| Citation | 67 So.2d 724,218 Miss. 731 |
| Parties | BYRD v. MASONITE CORP. et al. |
| Court | Mississippi Supreme Court |
Morse & Morse, Poplarville, for appellant.
Deavours & Hilbun, Laurel, Ray N. Stewart, Picayune, for appellees.
The trial court granted a peremptory instruction in favor of the appellees, Masonite Corporation and Johnnie Hawthorne, defendants in the above styled cause, and the plaintiff, Julius C. Byrd, has appealed to this Court. He sued the appellees and Jim Williams for the statutory penalty and the actual value of certain pine trees that had been cut and removed from 40 acres of land admittedly owned by him at the time of the cutting and removal of the trees in question.
The actual value of the trees was shown to be at least $400 or $500, and the plaintiff, on the appeal here, does not contend that the question of whether or not he was entitled to recover the statutory penalty for the trees should have been submitted to the jury but complains only that the trial court was in error in sustaining the motion of the appellees Masonite Corporation and Johnnie Hawthorne for a directed verdict in their favor as to actual damages. Upon the granting of such peremptory instructions the plaintiff took a nonsuit as to the defendant Jim Williamson.
The declaration alleged that 'the defendants Jim Williamson and Johnnie Hawthorne individually, and or as agents for the Masonite Corporation entered upon the lands * * * and did then and there without the consent of the plaintiff cut and remove' the trees in question, on the land of the plaintiff (describing it) on or about the first day of January 1951 and prior to June 8, 1951.
The proof disclosed that the defendant Johnnie Hawthorne had entered into a written contract with defendant Masonite Corporation to furnish it pulpwood at his own expense and with his own equipment and the labor employed by him. However, the proof was insufficient to show that the relation between them was that of employer and employee instead of independent contractor, or that the Masonite Corporation ever received from Johnnie Hawthorne or anyone else the trees that may have been cut and removed from the land of the plaintiff.
As to the proof against the defendant Johnnie Hawthorne, it was shown without dispute that during the period complained of someone had cut and removed the trees in question from the land of the plaintiff without his knowledge or consent; that the defendant Jim Williamson did cut timber from land immediately west of the land of Hubert Spiers and that the 40 acres of land belonging to the plaintiff lies immediately west of the land of Hubert Spiers; that Jim Williamson admitted this fact and the land on which he cut some trees was immediately north of the fence of the Hillcrest Farm, and that the plaintiff's land is situated immediately north of the Hillcrest Farm; that the defendant Jim Williamson cut trees immediately east of the land of Ferris Tate and that the plaintiff's 40 acres is situated immediately east of the land of Ferris Tate; that the said defendant cut and removed timber from land south of that of Fred Spiers and that the plaintiff's 40 acres is situated immediately south of said land; and that the defendant Williamson admitted that the land on which he cut trees was so situated in relation to the lands owned by these other landowners. The said defendant, when questioned as to whether or not that timber which he cut 'went to Mr. Johnnie Hawthorne', answered 'Yes, sir, it did.'
The plaintiff Julius Byrd testified that he talked with the defendant Johnnie Hawthorne about the timber in question and he was asked 'What did he tell you about it?' and answered 'He told me it was cut and he said 'I guess it was cut accidentally and if it was I paid Fred Spiers for the timber and have it on my books". He was also asked 'Did he tell you who cut the timber?' and answered 'He said Jim Williamson cut the timber.' He was further asked 'Did he tell you he cut it or had it cut?' and answered 'He said Jim Williamson cut it.' The witness further stated: 'Mr. Hawthorne told me to go to see Mr. Williamson and he said he would see Fred Spiers and they would get together.'
The plaintiff further testified tht he went to see the defendant Williamson and that the said defendant stated 'I believe they went down there about ten acres of it and if we did we got some nice stuff.' The plaintiff contended that timber had been cut off of approximately 18 acres of the 40 acres, and at several different times. He was further questioned as to his conversation with the defendant Hawthorne and he repeated his statement that 'He (Hawthorne) told me Jim Williamson had cut it and he paid Fred Spiers for it and he asked me to see Jim Williamson and he said 'I will see Fred Spiers and we will get together' * * *'; and on cross-examination the plaintiff was further questioned as to his conversation with the defendant Jim Williamson and the witness stated:
Another witness for the plaintiff Billie Doyle Wallace was asked on direct examination:
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...is a jury question to determine which, in fact, is true. F. W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Byrd v. Masonite Corp., 218 Miss. 731, 67 So.2d 724; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238; Posey v. Weatherspoon, 227 Miss. 189, 85 So.2d 908; Meridian Hatcheries......
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...jury to consider it, but simply presents a case for the jury's determination.' This case was cited with approval in Byrd v. Masonite Corporation, 218 Miss. 731, 67 So.2d 724. In this connection it is significant to note that Sam Matthews, the driver of the bus on July 5th, was still in the ......
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Dearman v. Partridge, 41584
...is a jury question to determine which, in fact, is true. F. W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Byrd v. Masonite Corp., 218 Miss. 731, 67 So.2d 724; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238; Posey v. Weatherspoon, 227 Miss. 189, 85 So.2d 908; Meridian Hatcheries......
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