McCain v. Wade

• Decision Date: 02 May 1938
• Docket Number: 33193
• Court: Mississippi Supreme Court
• Parties: MCCAIN v. WADE

180 So. 748

181 Miss. 664

MCCAIN v. WADE

No. 33193

Supreme Court of Mississippi

May 2, 1938

Division B

1. APPEAL AND ERROR.

Where action was not tried until more than three years after institution thereof, presumption existed that it was continued from term to term by consent, otherwise it would have been dismissed under statute (Code 1930, section 667).

2 TRIAL.

In excluding the evidence of a party litigant, everything in that evidence and every reasonable inference to be drawn therefrom in favor of that litigant must be taken as truthful proof in his behalf.

3 NEGLIGENCE.

In tort action for damage caused by fire, the plaintiff must show with fair or reasonable certainty or definiteness that the party charged is the party actually responsible for the wrong (Coda 1930, section 3.422).

4. APPEAL AND ERROR.

The action of trial judge in sustaining motion to exclude plaintiff's evidence at close of plaintiff's case is presumed to be correct.

5 NEGLIGENCE.

In action for damage caused by fire which defendant allegedly set out on land and negligently allowed to burn plaintiff's hay, record did not show that trial court erred in sustaining defendant's motion, at, close of plaintiff's evidence, to exclude plaintiff's evidence and in refusing to submit case to jury (Code 1930, section 3422).

HON. T H. MCELROY, Judge.

APPEAL from the circuit court of Calhoun county, HON. T. H. MCELROY, Judge.

Action by S.W. McCain against Mrs. C. W. Wade, in tort to recover damages caused by fire allegedly set by defendant through her agents and employees. From an adverse judgment, plaintiff appeals. Affirmed.

Affirmed.

W. J. Evans, of Calhoun City, and W. I. Stone, of Coffeeville, for appellant.

There is no question about it that the court having granted a peremptory instruction everything is taken to have been proved that is shown by the testimony or by reasonable inference therefrom.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Pough, 140 Miss. 479; 106 So. 81; St. Louis & S. F. R. Co. v. Nixon & Phillips, 141 Miss. 677, 105 So. 478; Gulf & S. I. R. Co. v. Hales, 140 Miss. 829, 105 So. 458.

The statute 3422 gives us the right; we have proved that her hands, headed by her husband, left the fire out there carelessly and destroyed the plaintiff's hay. We cannot see any justification whatever for the peremptory instruction and, therefore, we ask for a reversal of the case and a new trial so that a jury may decide the proper jury question that we have propounded; that is, if it is denied because as it stands we were entitled to a peremptory instruction as our testimony is uncontradicted in the record.

Patterson & Patterson, of Calhoun City, for appellee.

We respectfully submit that the only question presented for decision of this court is whether or not the testimony offered by the appellant, the plaintiff in the court below, was sufficient to go to the jury for decision by the jury on the question of whether or not the appellee went on the lands owned at the time by her, but occupied at the time by the appellant, by her agents and employees, and set out fire on said lands and negligently and carelessly allowed the fire to spread to the hay owned by the appellant located on said land. It is undisputed that there had been fire in the territory near where the hay was stacked for three or four days, that is to say, in the territory near where the hay was located, other than that upon which the hay was stacked and other than that upon which the witness, George Wortham, and other negroes were working.

It is conclusively shown by the witness, George Wortham, that he was not the agent or employee of appellee nor her husband, but that he was cutting wood for himself by permission of appellee's husband, C. W. Wade, and the appellant, McCain.

We respectfully submit that, taking the testimony as a whole there is not sufficient proof in the record to show that any person who had been on the premises at any time near the time of the fire in question was acting as the agent of the appellee, or that appellee had anything whatever to do with those who were working on her land at the time, but if mistaken in this, the testimony certainly shows that the only person even remotely connected with anything that could have possibly caused the fire was the husband of appellee, to-wit, C. W. Wade, and the only act of said C. W. Wade that could possibly connect him with the burning of the hay, is the fact that it was shown that he "fired a old Beach Tree on the edge of the cotton patch about a week before the...