Collins v. Morris

• Citation: 97 Kan. 264,155 P. 51
• Decision Date: 12 February 1916
• Docket Number: 19,920
• Parties: J. C. COLLINS, Appellant, v. JOHN MORRIS, Appellee
• Court: Kansas Supreme Court

155 P. 51

97 Kan. 264

J. C. COLLINS, Appellant, v. JOHN MORRIS, Appellee

No. 19,920

Supreme Court of Kansas

February 12, 1916

Decided, January, 1916.

Appeal from Miami district court; JABEZ O. RANKIN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MOTION FOR NEW TRIAL--Its Purpose. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist.

2. APPEAL--Matters for Review. "Only such matters as were considered by the trial court are open to review in the supreme court." (Brock v. Corbin, 94 Kan. 542, 146 P. 1150, syl. P 4, 146 P. 1150.)

3. APPEAL--Matters Not Raised in Motion for New Trial--Not Reviewable. Following Washburn v. Bank, 86 Kan. 468, 121 P. 515, it is held where no complaint of the admission of evidence over plaintiff's objection was made in the motion for a new trial, the question can not be raised in this court.

4. TREES--Owner May Use His Land for Any Purpose Desired. "It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed." (Barker v. Railway Co., 94 Kan. 61, 66, 145 P. 829.)

5. TRESPASS--Destruction of Trees--Measure of Damages--Evidence. In an action under section 9692 of the General Statutes of 1909 by a landowner to recover treble damages for the destruction of trees where plaintiff has elected to recover the distinct value of the trees, which the evidence shows can be determined independent of the land, and has offered no evidence of the value of the land before and after the trees were destroyed, it is error to admit over plaintiff's objections proof that the land would sell for as much or more for farming purposes without the trees as with them.

6. TRESPASS--Destruction of Trees--Evidence Does Not Sustain Verdict. While it is not the province of this court to weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict; and in this case the court determines the verdict is contrary to the evidence and therefore the judgment is reversed.

7. OBITER DICTUM--Certain expressions in the opinion in the case of Railway Co. v. Lycan, 57 Kan. 635, 47 P. 526, are held to be obiter and are disapproved.

E. J. Sheldon, and S. J. Shively, both of Paola, for the appellant.

Alpheus Lane, and M. A. Lane, both of Paola, for the appellee.

OPINION

PORTER, J.:

This is an action to recover treble damages for the malicious destruction of trees. Plaintiff and defendant own adjoining farms, and the trees destroyed were six shade trees which plaintiff alleges were growing on his land near the partition fence. There was a verdict and judgment in favor of defendant, from which the plaintiff appeals.

The specifications of error in plaintiff's brief are, first, the admission of incompetent and immaterial testimony over his objections; second, the rejection of competent testimony offered by the plaintiff; third, overruling the motion for a new trial; fourth, rendering a verdict for defendant; fifth, ordering a judgment for defendant. The case was submitted to a jury on evidence and instructions, and no judgment was ordered, so the fifth assignment need not be considered.

At the outset we are confronted with the objection which defendant makes to any consideration of the first and second specifications, which relate to the admission of evidence, because they are raised for the first time in this court. As the principal questions argued in plaintiff's brief relate to the rulings of the court admitting certain testimony offered by the defendant, it will be necessary to consider the grounds of the motion for a new trial. The grounds are stated as follows:

"Now comes the plaintiff and moves the court for a new trial of the issues at law and fact in the above entitled case for the reason that the verdict is contrary to the evidence. And for the further reason that the verdict is contrary to law as given under the influence of passion and prejudice, and not a fair consideration of the evidence, and for the further reason that the plaintiff did not have a fair trial."

Nowhere is there any reference to rulings of the court on the admission of testimony. A new trial was asked, first, because the verdict is contrary to the evidence; second, because it is contrary to law as "given under the influence of passion and prejudice, and not a fair consideration of the evidence"; and third, because the plaintiff did not have a fair trial.

The amended code provides that a new trial may be granted on the application of the party aggrieved when it appears that his rights are "substantially affected":

"First, because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.

"Second, erroneous rulings or instructions of the court.

"Third, that the verdict, report or decision was given under the influence of passion or prejudice.

"Fourth, that the verdict, report or decision is in whole or in part contrary to the evidence.

"Fifth, for newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

"Sixth, that the verdict, report or decision was procured by the corruption of the party obtaining it." (Civ. Code, § 305.)

The third reason stated in the motion--"that the plaintiff did not have a fair trial"--is not a statutory ground unless it be made to appear that he was prevented from having a fair trial by one of the six grounds set forth in the statute.

There is nothing in the motion challenging the attention of the trial court to the principal claim now raised in this court, that incompetent or immaterial testimony in favor of defendant was admitted over the plaintiff's objections. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon, in order that the court may, by granting a new trial, correct any error shown to exist. It would not be fair to the other litigant, nor fair to the trial court, nor to this court, if a defeated litigant were permitted to secure the reversal of a judgment on grounds not presented to the court below. If there be reversible error in a verdict or judgment the interests of justice and of both parties as well as of the public are best served by the granting of a new trial at once rather than after the delay and costs incident to an appeal. It is precisely for the same reasons that the amended code (§ 307) requires that where the exclusion of evidence is relied upon, the excluded evidence must be produced before the trial court so the trial judge may pass upon it and determine whether a new trial should be granted. (Thompson v. Thompson, 94 Kan. 168, 171, 146 P. 344; Broady v. Fire Association, 94 Kan. 245, 146 P. 343.)

"Only such matters as were considered by the trial court are open to review in the supreme court." ( Brock v. Corbin, 94 Kan. 542, 146 P. 1150, syl. P 4, 146 P. 1150.)

In a recent case (Washbon v. Bank, 86 Kan. 468, 121 P. 515) it was ruled as follows:

"Certain evidence was admitted over the objection of plaintiffs. No complaint of the ruling was made in the motion for a new trial. Held, that the question can not be raised in this court." (Syl. P 1.)

The errors of which the plaintiff now complains respecting the admission of testimony would have been sufficiently set forth if in his motion for a new trial he had merely alleged "erroneous rulings" in the language of the second ground provided in the statute.

"In a motion for a new trial it is sufficient to set forth the grounds in the language of the statute, and where such a motion recites "erroneous rulings" as one of its grounds, appellant can have a review of any ruling made on the trial respecting the admission of evidence." ( Coal Co. v. Nicholson, 93 Kan. 638, syl. P 2, 145 P. 571.)

The failure to raise the question below is unfortunate, for the court is satisfied there was prejudicial error in the admission of certain testimony respecting the measure of damages. This, however, furnishes some reason for what might under ordinary circumstances be regarded as a rather technical consideration of the other errors assigned. We find nothing to indicate that the verdict was given under the influence of passion or prejudice. The court, over the objections of plaintiff, permitted the defendant to prove by a number of witnesses that the destruction of the shade trees caused no damage or injury to the real estate. These witnesses were permitted to testify that in their opinion the land was just as valuable for farming purposes without as with the shade trees, and one or two of defendant's witnesses thought the destruction of the trees benefited the land and made it even more valuable than before. The court having admitted the incompetent evidence, it was the duty of the jury to consider it; and the fact that they found for the defendant indicates that they did so because of this evidence, rather than that they were influenced by prejudice or passion.

There remains only the first ground stated in the motion--that the verdict is contrary to the evidence. The plaintiff's testimony showed that the shade trees were valuable. A few of them were oak, and others elm. The plaintiff...