Kelley v. Joslin

Decision Date06 December 1927
Citation123 Or. 253,261 P. 413
PartiesKELLEY v. JOSLIN ET AL.
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by H. F. Kelley against C. W. Joslin and another, doing business as Joslin & McAllister. From a judgment for plaintiff for a part of the damages asked, plaintiff appeals. Reversed and remanded.

This is an action for general and special damages resulting from a trespass alleged to have been committed by the defendants upon plaintiff's lands. The complaint sets forth three causes of action, the first alleging that the defendants are copartners, and further alleging plaintiff's ownership in fee of certain described lands used as a farm, upon which there were certain described buildings used in connection therewith, and that on or about September 1, 1926, the defendants acting together and jointly by themselves, their agents, servants, and employees, forcibly and wrongfully broke into and entered said lands and took possession thereof, and placed in the barn on said premises a number of horses and feed for same, and wrongfully continued to use and occupy said premises until and including the 9th day of September, 1926, and for which plaintiff claims $100 general damages.

The second cause of action, after alleging all the facts in the first cause of action, alleges that on the 9th day of September, 1926, the defendants, their agents, servants, and employees, while trespassers on the said lands, started, or caused to be started, a fire which destroyed the barn and granary on the premises to plaintiff's special damages in the sum of $800.

For a third cause of action, it is alleged, after making the allegations of the first and second causes of action a part thereof, that plaintiff owned and had stored in and about the granary on said premises certain personal property consisting of seven sets of work harness, twenty-one horse collars, and certain farming implements and tools, of the value of $1,000, which were also destroyed in the same fire and to plaintiff's damage in that sum.

The prayer of the complaint is for total damages in the sum of $1,900, with interest thereon at the rate of 6 per cent. per annum from September 9, 1926, the date of the destruction of the property.

Defendants answered by a general denial of all the allegations of each cause of action, except as to the partnership of defendants which is expressly admitted.

The cause was tried by the court and a jury, and a verdict rendered in favor of plaintiff in the sum of $33.75 general damages. The finding was for the defendants on both claims for special damages. The court gave judgment on the verdict in favor of plaintiff for $33.75, and against the plaintiff in favor of defendants for their costs and disbursements. From this judgment plaintiff appeals and assigns as error the giving of certain instructions by the court to the jury, the refusal of the court to give certain requested instructions giving judgment in favor of defendants and against plaintiff for costs and disbursements, and the refusal of the court to give judgment in favor of plaintiff against defendants for costs and disbursements.

D. W Sheahan, of Enterprise (Thomas M. Dill, of Enterprise, on the brief), for appellant.

J. A Burleigh, of Enterprise (S. H. Burleigh, of Enterprise, on the brief), for respondents.

McBRIDE, J. (after stating the facts as above).

The theory of appellant is that the fire, which destroyed the property, resulted from the acts of the defendants, or their servants and employees, while trespassing upon plaintiff's property; that the cause of the fire was a matter that should have been left to the jury to be decided by them according to the preponderance of the evidence; and that the court committed error by qualifying the word "preponderance" by adding thereto expressions which, appellant claims, instructed the jury that more than a preponderance of the evidence was required to justify a verdict in favor of plaintiff for damages resulting from the fire.

The court, in instructing the jury, among other matters, gave the following instructions:

"(8) I instruct you, gentlemen of the jury, that this is an action for general damages
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5 cases
  • State v. Stacey
    • United States
    • Oregon Supreme Court
    • April 28, 1936
    ...and the oral admissions of a party with caution." In support of this contention the defendant cites and relies upon Kelley v. Joslin, 123 Or. 253, 261 P. 413, 414, Herman v. East Side Logging Co., 135 Or. 279, 295 960, 961, and Gray v. Wassell, 138 Or. 274, 4 P.2d 625, 627. In Kelley v. Jos......
  • Metropolitan Casualty Ins. Co. of New York v. N.B. Lesher, Inc.
    • United States
    • Oregon Supreme Court
    • December 31, 1935
    ...the balance due thereon at that time." The question of a preponderance of evidence was not involved in that case as it had been in Kelley v. Joslin, supra, yet in passing upon question that was involved, this court said: "The identical question was considered in Kelley v. Joslin et al., 123......
  • McCredie v. Commercial Casualty Ins. Co.
    • United States
    • Oregon Supreme Court
    • March 21, 1933
    ... ... Herman v. East Side Logging Co., 135 Or. 279, 295 P ... 960; Eastman, Executrix, v. Crary, 131 Or. 694, 284 ... P. 280; Kelley v. Joslin et al., 123 Or. 253, 261 P ... 413; Carty v. McMenamin & Ward, 108 Or. 489, 216 P ... 228; and he is to be commended for his ... ...
  • Bronkey v. Olson
    • United States
    • Oregon Supreme Court
    • January 9, 1934
    ... ... Oregon-Washington R. & Nav. Co., 133 Or ... 663, 288 P. 1003, 291 P. 1017; Eastman v. Crary, 131 ... Or. 694, 284 P. 280; Kelley v. Joslin, 123 Or. 253, ... 261 P. 413; Rugenstein v. Ottenheimer, 70 Or. 600, ... 140 P. 747; Church v. Melville, 17 Or. 413, 21 P ... ...
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