Kesterson v. Hays
| Decision Date | 03 March 1919 |
| Docket Number | 128 |
| Citation | 209 S.W. 721,137 Ark. 592 |
| Parties | KESTERSON v. HAYS |
| Court | Arkansas Supreme Court |
Appeal from Baxter Circuit Court; J. B. Baker, Judge; affirmed.
Judgment affirmed.
Allyn Smith and W. C. Alley, for appellant. Dyer & Alley, of counsel.
1. It was error to allow the witness to testify as to the fair market value of the fruit. The witness was not an expert nor was she shown to have had any knowledge of the value of fruit save and except store fruit at her home in Illinois. The real test was the market value of fruit at Cotter, where it was seized. This is too well settled to even cite authorities.
2. It was error to direct a verdict for appellee. There was a question for a jury. 206 S.W. 491; Ib. 143. Bessie Hays' testimony was not sufficient and she was really impeached as to morality and her brother's and sister's testimony proved nothing and the burden was on appellee. Under the proof it was error to direct a verdict. 203 Mass. 489; 89 N.E. 793-4.
3. The verdict is excessive even after the remittitur was entered as it then allowed her 30 cents a quart for the fruit when the value at Cotter was only $ 8.40.
This is an action instituted by appellee against appellant to recover damages for certain personal property, of comparatively insignificant value, alleged to have been wrongfully converted by appellant. There was an issue in the case as to the ownership of the property, and also an issue as to the market value thereof. After all the testimony had been introduced, the court took away from the consideration of the jury the issue as to ownership of the property and directed a verdict in favor of appellee, but submitted the question of value in the assessment of damages for the conversion of the property.
The subject-matter of the litigation was a quantity of canned fruits which appellee asserted that she had prepared at the home of her parents in Baxter County, and owned. It is contended that the fruit in controversy was the property of her father and the same was seized under legal process as his property. Appellee introduced her own testimony and that of her brother and two other witnesses who were present at the house of her parents at the time the fruit was canned. Appellant introduced no testimony on that issue at all, but contented himself with attacking the credibility of appellee as a witness.
We are of the opinion that the testimony on that issue was uncontradicted, and that the court was correct in taking the question from the consideration of the jury. If the testimony of appellee herself be entirely discarded...
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