Georgia Southern & F. Ry. Co. v. Hamilton Lumber Co.

• Decision Date: 01 June 1912
• Court: Florida Supreme Court
• Parties: GEORGIA SOUTHERN & F. RY. CO. v. HAMILTON LUMBER CO.

58 So. 838

63 Fla. 150

GEORGIA SOUTHERN & F. RY. CO. v. HAMILTON LUMBER CO.

Florida Supreme Court

June 1, 1912

Error to Circuit Court, Hamilton County; Ira J. Carter, Judge.

Action by the Hamilton Lumber Company against the Georgia Southern &amp Florida Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded on condition.

Syllabus by the Court

SYLLABUS

An order of the circuit court granting a new trial will be reversed if it appears that the order has violated some settled principle of law.

Whether a charge given to the jury is erroneous or misleading should be determined by a consideration of the charge complained of in connection with all the other charges given, and the pleadings and evidence in the case.

When it appears from the whole record that an alleged misleading charge could not reasonably have influenced the verdict to the injury of the complaining party, a new trial on that ground should not be granted.

Where a new trial is granted on the specific ground that a charge 'was, perhaps, misleading in view of the evidence,' and the charge, when considered with other charges given and the evidence, could not reasonably have misled the jury, and the motion for new trial does not disclose errors injuriously affecting the movant, the order granting the new trial will be reversed.

COUNSEL M. F. Horne and R. L. Frink, both of Jasper, for plaintiff in error.

S. S Sandford, of Jasper, for defendant in error.

OPINION

WHITFIELD C.J.

In an action of replevin brought by the Hamilton Lumber Company against the Georgia Southern & Florida Railway Company to recover the possession of 548 pine and cypress railroad cross-ties, there was judgment for the defendant. A motion for new trial was made by the plaintiff on the grounds that the verdict is contrary to the law, to the evidence, and to the charge of the court, and that the court erred in giving a charge hereafter set out. A new trial was granted on the ground that 'the charge was, perhaps misleading in view of the evidence,' and a writ of error was taken by the defendant railroad company under section 1695 of the General Statutes of 1906.

The evidence tends to show that the Hamilton Lumber Company had parol authority to cut cross-ties from the land of J. R. Sandlin and contracted with R. C. Lester to cut cross-ties on the land for delivery by the Hamilton Lumber Company to the Georgia Southern & Florida Railway Company; that Lester obtained verbal permission from Sandlin to cut cross-ties on his land and did cut cross-ties from Sandlin's land and place them on the railroad right of way; that Lester notified the Hamilton Lumber Company that he had 1,300 cross-ties on the railroad right of way and obtained advances thereon from the Lumber Company; that the Lumber Company inspected the cross-ties; that afterwards Lester delivered the cross-ties in controversy to the Railroad Company on his own account, claiming that they did not belong to the Lumber Company. Conflicts in the testimony as to the rights of the parties have been settled by the jury in finding for the defendant. In granting a new trial on the specific ground that a charge given may have misled the jury in view of the evidence, the court in effect overruled the grounds of the motion for new trial that the verdict is contrary to the evidence, the law, and the charge of the court.

The court granted the new trial on the ground that the following charge 'was perhaps misleading': 'If you find from the evidence that one Sandlin made a parol sale of standing timber to plaintiff, and that Lester, under a contract with plaintiff, entered upon Sandlin's land and cut and manufactured from such timber the ties involved in this suit for the plaintiff, then you should find the right of property to such ties as were cut to be in the plaintiff, that it is entitled to the possession. If, on the other hand, you should find that the ties in question were cut from timber not included in any parol sale from Sandlin to plaintiff, or the plaintiff canceled or terminated Lester's contract before the cutting of these ties, and that Lester bought the timber from Sandlin on his own account, and did not cut it under the contract between Lester and the plaintiff, but for himself, and thereafter sold and delivered the ties to the defendant, or some one for it, then you should find for defendant.'

At the request of the plaintiff, Hamilton Lumber Company, the court gave the following charge: 'If Lester, after he had cut these ties, went to the Hamilton Lumber Company, and informed them that he had 1,300 ties cut and piled on the right of way, and asked for money on the 1,300 ties, and that these ties in question were part of the 1,300, and the Hamilton Lumber Company went and found that the 1,300 ties were...