Grier v. Ward

• Decision Date: 30 June 1857
• Citation: 23 Ga. 145
• Parties: Samuel A. GriEr, plaintiff in error. vs. David Ward, defendant in error.
• Court: Georgia Supreme Court

23 Ga. 145

Samuel A. GriEr, plaintiff in error. vs. David Ward, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1857.

Trespass, in Randolph. Tried before Judge Kiddoo, at November adjourned Term, 1856.

This was an action of trespass brought by Daniel Ward, against Samuel A. Grier, for throwing four bales of cotton belonging to plaintiff into the Chattahoochee river.

It appeared that plaintiff was hauling his cotton to a ferry or landing on said river, and was driving through defendant's premises. Defendant met him and forbid him from going through his plantation, and ordered him back. Plaintiff turned round and went another way, but again came to defendant's enclosure, pulled down the fence and drove through down to the river, where he unloaded and left his cotton on the bank. Defendant ordered his negroes to go down and throw it down the bluff, but not at first into the river; afterwards upon being taunted by some one on the opposite side of the river, which he took to be plaintiff, he ordered his negroes to throw it into the river, which they did. The cotton floated down the river about four miles, but was not much injured; was taken from Col. Tony's landing by a steamboat down to Apalachicola, where it was sold. There was evidence going to show that the cotton belonged to one Davis, it was he that got the cotton and sent it to Apalachicola. Plaintiff brought suit for this trespass, and the jury found for him two hundred dollars.

Whereupon defendant moved for a new trial upon the following grounds, viz.:

1st. Because the verdict is contrary to law.

2d. Because the verdict is contrary to evidence.

3d. Because the verdict is contrary to law and evidence.

4th. Because the Court erred in not permitting defendant's counsel to read the whole of the answer of James Grier, Jr., to the third cross interrogatory.

5th. Because the Court refused to charge as requested by defendant's counsel, that every unwarrantable entry on another's soil by breaking his close, the law considers a trespass, and every trespass is wilful when the trespasser is warned not to come upon his land, and the owner of the soil has the right to the sole use and occupation of it, and every entry thereon without permission, and especially if contrary to the express orders of the owner, is a trespass.

[To this ground, the Judge adds a note, that he charged this to be the law, but at the same time charged that one trespass will not justify another.]

6th. Because the Court refused to charge the jury as requested by defendant's counsel "that if the evidence shows that the cotton was recovered, and there is no evidence of loss upon the sale, expense or trouble in recovering it, then the plaintiff is not entitled to recover, if the defendant has shown the recovery of the cotton, then the burden of proof is on the plaintiff, to show damage or loss;" but charged that if the defendant threw the cotton into the river, and it floated off, the jury would presume it was lost to the plaintiff, but whatever he afterwards realized from it, might be deducted from the damage.

7th. Because the Court refused to charge the jury as requested by defendant's counsel "That the jury may weigh the testimony of Tharp, and although the Court would not exclude it, yet the jury may take into consideration, that Tharp is a convict from the Penitentiary, and from that as any other circumstance, form their opinion of it, and give it such weight as they may think it deserves, " but charged, that it was the province of the jury to judge of the credibility of witnesses, and weigh their testimony; that the fact of a witness having been in the Penitentiary, would not necessarily discredit him unless he had been convicted of a crime which from its nature would affect his credibility.

8th. Because the Court refused to charge the jury as requested, "That if they believed the act of hauling the cot-ton and depositing it on defendant\'s land was a trespass, then defendant was justified in what he did."

9th. Because the Court refused to charge the jury as requested "that the law will justify the owner of the soil in repelling a trespasser, if one enters and deposits goods on the land of another, the law will justify the owner in expelling the person or removing the goods, and if the first trespass is wilfully done and against the forewarnings of the owner, then the law will justify the use of any means, however violent, that may be necessary and requisite to expel the intruder and remove his goods;" but charged, that the force necessary to prevent a trespass might be used, and defendant might have removed the cotton, but so as to do as little injury to the plaintiff as possible, that one trespass would not justify another; that if the plaintiff had committed a trespass on defendant's property, he ought to have resorted to the law for redress.

10th. Because the Court refused to charge the jury as requested, "That if they are satisfied from the evidence that plaintiff had sold the cotton to Davis, and Davis subsequently recovered it and sustained no loss on it, or expense or trouble in the recovery, that then there was no loss on the cotton, " but on the contrary, charged that if Ward realized anything from the cotton, that amount less the expense of its recovery should be deducted from the damages.

11th. Bescause the Court...