Pemiscot Land & Cooperage Co. v. Davis

• Decision Date: 21 February 1910
• Court: Missouri Court of Appeals
• Parties: PEMISCOT LAND & COOPERAGE CO. v. DAVIS et al.

126 S.W. 218

147 Mo. App. 194

PEMISCOT LAND & COOPERAGE CO. v. DAVIS et al.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

1. APPEAL AND ERROR (§ 286)—RULINGS REVIEWABLE—OVERRULING CHALLENGE TO JUROR—MOTION FOR NEW TRIAL.

The error in overruling the challenge to a juror will not be considered on appeal where the point was not saved by motion for new trial, and where it does not appear that the juror was one of the jurors selected to try the case.

2. JURY (§ 90)—COMPETENCY—RELATIONSHIP TO PARTIES—"AFFINITY."

Rev. St. 1899, § 3785 (Ann. St. 1906, p. 2102), forbidding the impaneling of a juror of kin to either party within the fourth degree of consanguinity or affinity, disqualifies a juror who is a second cousin of the wife of one of the parties, because he is within the fourth degree of "affinity," which is the relationship by marriage between a husband and his wife's blood relations or between a wife and her husband's blood relations.

3. LIMITATION OF ACTIONS (§ 195)—TRESPASS TO REAL ESTATE—LIMITATIONS—BURDEN OF PROOF.

Where, in an action for single damages for trespass by cutting and removing timber, the total amount of the timber cut and removed and the value thereof were proved, the burden was on defendant, relying on the five-year statute of limitations (Rev. St. 1899, § 4273 [Ann. St. 1906, p. 2349]), to show what timber was cut prior to the five years before the bringing of the action and the value thereof, so that such value could be deducted from the value of all timber cut and removed.

4. LIMITATION OF ACTIONS (§ 195)—DEFENSES —BURDEN OF PROOF.

A defendant who pleads the statute of limitations has the burden of bringing himself within the statute; and this burden rests on him throughout all the incidents involved in the plea.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the Pemiscot Land & Cooperage Company against E. L. Davis and others. From a judgment for nominal damages, plaintiff appeals. Reversed and remanded.

Action by plaintiff, appellant here, against respondents for $500 damages claimed to be due for trespass on lands of plaintiff, cutting and removing therefrom a lot of timber and converting the timber to the respondents' use. The action was commenced in the circuit court of Pemiscot county on the 25th day of April, 1907. The answer is a general denial and the plea of the five-year statute of limitations (section 4273, Rev. St. 1899 [Ann. St. 1906, p. 2349]), single damages alone being demanded, not the treble damages recoverable under section 4572, under which latter the three-year limitation would apply. Trial before court and jury. When the jurors were being examined upon voir dire, one of the jurors stated that he was a second cousin to the wife of one of the defendants. He was challenged for cause by the plaintiff, the challenge overruled, and exception saved. There was evidence in the case tending to show that while neither plaintiff nor defendants were in possession of the land the legal title was in plaintiff. There was also evidence tending to show that the defendants were claiming under a bill of sale for the timber made to them by one Davis, on the 22d of May, 1901, who claimed by virtue of a tax deed of date September 9, 1897, the suit under which the sale was had and the deed made being against two parties, neither of whom appear to have had any title to the land at the date of the suit. There was evidence on behalf of plaintiff to the effect that the timber had been cut and taken from the land by parties acting under order of the defendants not over three years before the beginning of the suit. There was also evidence tending to show the number of feet cut and its value, somewhere around $150. A witness for plaintiff testified that he had cut this timber off of land, of which the land in controversy was a part; that, to the best of his recollection the last of the timber was cut and removed from the land in July, 1902. A witness for defendants testified in direct examination that none of the timber was cut later than April 25, 1902, but on cross-examination he admitted that he did not know when the last was cut, and whether the last that was cut was cut off of the land in controversy; that he paid no attention to dates, could not say exactly when they finished cutting on the land in controversy, could not say in what month in 1902 the timber cutters got through cutting on this land, could not say that it was not in the month of July, 1902; that what he means to say was that the last that was cut was in July, 1902, but whether that cutting was off of this land or not he would not undertake to say. He further testified that he did not know and was not willing to say whether any timber was cut off of this land before the 25th of April, 1902, or not. One of the defendants testifying said, in effect, that he would not say that the timber which had been cut off this land had been cut off and removed before the 25th of April, 1902. In brief, while the testimony tended to show timber had been cut off this land after April 25, 1902, it did not show just how much of that cut and removed from the tract had been after that date; that is, it did not definitely show how much had been cut and removed within the five years, nor how much before the beginning of the five-year period.

At the conclusion of the testimony, the court, at the instance of plaintiff, gave four instructions. The first was to the effect that under the evidence in the case neither of the defendants had any title to the land described in the petition nor any right or title to the timber on the land, and that the deeds and contracts read in evidence gave to plaintiff the right to sue and recover for any and all timber removed from the land by these defendants or either of them, or their agents or servants or employés, within the five years immediately prior to April 25, 1907, the date of which this action was begun, and if the jury found from the evidence that the defendants through their agents or employés or in person entered upon the land and cut and removed the timber within five years immediately prior to April 25, 1907, and converted the same to their own use and benefit, the jury would find the issues for the plaintiff "in whatever sum you may find it to have been damaged by reason of the conversion of the timber as aforesaid, and assess its damages in a sum not exceeding $500." In the second instruction given at the instance of plaintiff the jury were told, in substance, that, if they found for plaintiff, they would, in assessing its damages, take into consideration the amount of timber taken from the land by one of the defendants (Reynolds) or his agents within five years next prior to April 27, 1907, and upon this amount of timber the jury would compute its damage by taking the market value of the timber at that time and place and allowing the plaintiff such sum as the jury would find to have been the reasonable market value of the timber at that time and place, not exceeding $500. The third instruction given at the instance of plaintiff was as to the bar of the statute of limitations plead by the defendants, and, as to that, the court instructed the jury that the burthen of proving that the cause of action accrued more than five years before the commencement of the action rests upon the defendants, and that, unless the defendants "prove to you by the preponderance or...