Kelley v. Welborn, 38689
| Decision Date | 16 March 1953 |
| Docket Number | No. 38689,38689 |
| Citation | 217 Miss. 16,63 So.2d 413 |
| Parties | KELLEY v. WELBORN et al. |
| Court | Mississippi Supreme Court |
Hester & Walker, Laurel, for appellant.
Collins & Collins, Laurel, for appellees.
Appellees own the SW 1/4 of SW 1/4 of Section 35, Township 10, Range 12 West, in Jones County. They brought suit against appellant for $223 actual value and $720 statutory penalty at the rate of $15 per tree for 48 trees cut by appellant from said land and recovered judgment for $936 from which this appeal is prosecuted.
Appellant contends that the verdict is contrary to the overwhelming weight of the evidence. We think on the contrary that a finding in favor of appellees is supported by the overwhelming weight of the evidence. The evidence shows that Kelley, through his agents, went upon said land and cut and removed 25 pine trees and 23 hardwood trees. Welborn told Kelley not to cut the timber from this land and Kelley replied that he had bought the timber from another party and was going to cut it and that if Welborn wanted to take any action he had better do it. That was before any timber had been cut. After the cutting started Welborn gave Kelley a written notice not to cut it and Kelley told him that he was going to cut it and ordered Welborn not to come upon the property. Kelley himself admits this and further admits that he did not investigate the land records to ascertain who was the owner. He testified that Welborn wanted him to withhold the cutting until the question of title could be put through court and that he told Welborn that he was going to get the timber while he could,--that he was too busy to pay any attention to Welborn's protests. Kelley had bought from J. D. Sibley the timber on the NW 1/4 of SW 1/4 and did not have the south line of that tract surveyed. It is difficult to conceive of a stronger case of reckless, willful and wanton conduct and in our judgment the jury could have done nothing except find against Kelley for both the actual value and the statutory penalty for cutting the timber.
It is next contended that the trial court erred in not excluding Welborn's evidence of a survey of the line which was made by the county surveyor. According to the testimony of the surveyor he ran the line between the two 40-acre subdivisions and found it to coincide with an old line which had long before been run and marked out. He did not claim to have started his survey at a recognized corner established by the original government survey, but he did testify that he had previously surveyed in that area and started at an old recognized corner and that his survey tied in with the old established lines. The accuracy of this survey was for the jury, Harris v. McMullan, 212 Miss. 382, 54 So.2d 544, and the trial court committed no error in refusing to exclude it. It is undisputed that 48 trees were cut south of the line which was run by the county surveyor. Kelley had no survey made to determine the true line and did not seriously dispute the accuracy of the line which had been run by the county surveyor.
Appellant further contends that the trial court erred in granting the following instruction to appellees: 'The court instructs the jury for the plaintiffs that if you believe from a preponderance of the evidence in this case that the defendant, his agents or servants, cut and removed any of the timber sued for in the declaration from the lands of plaintiffs without the consent of plaintiffs, then it is your duty under the law to find for plaintiffs, and to assess the damages in a sum equal to the value of such timber, if any, as shown by a preponderance of the testimony in this case to have been cut and removed from the lands of plaintiff by the defendant, his agents or servants, without the consent of plaintiffs; and in addition to the actual value of such timber so cut and removed, if any, you may return a verdict of $15.00 per tree for each pine tree, if any, and $15.00 for each hardwood tree, if any, so cut and removed from the lands of the plaintiffs by the defendant, his agents or servants, without the consent of plaintiffs.'
The first complaint against this instruction is that it authorized a recovery of the statutory penalty if the trees...
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Mississippi Milk Commission v. Winn-Dixie Louisiana, Inc.
...those against whom it is sought to impose the penalty. Mississippi Ins. Comm'n v. Savery, 204 So.2d 278 (Miss.1967); Kelley v. Welborn, 217 Miss. 16, 63 So.2d 413 (1953); Mississippi State Bd. of Dental Examiners v. Mandell, 198 Miss. 49, 21 So.2d 405 (1945); Harris v. State, 179 Miss. 38, ......
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Quick Shops of Miss., Inc. v. Bruce
...Engineering & Electric Company v. Chester, 226 Miss. 136, 83 So.2d 811, corrected 226 Miss. 136, 84 So.2d 535 (1955); Kelley v. Welbourn, 217 Miss. 16, 63 So.2d 413 (1953); Keathley v. Hancock, 212 Miss. 1, 53 So.2d 29 (1951). A statute barring a real estate broker from access to the courts......
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Bay Springs Forest Products, Inc. v. Wade, 53790
...The only authority cited by Bay Springs in support of its view that Gunter's testimony should have been excluded is Kelley v. Welborn, 217 Miss. 16, 63 So.2d 413 (1953). We read Kelley as establishing the correctness of the trial judge's decision to admit the testimony and plat of Mr. Gunte......
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Teasley v. Buford, 2002-CA-00711-COA.
...of showing how many trees were cut before he could recover the statutory penalty for the destruction of trees. Kelley v. Welborn, 217 Miss. 16, 63 So.2d 413, 416 (1953). A party has a right to have his theory of the case presented to the jury if there is credible evidence which supports the......