Perkins v. McCullough

• Decision Date: 04 December 1899
• Citation: 59 P. 182,36 Or. 146
• Parties: PERKINS v. McCULLOUGH et al.
• Court: Oregon Supreme Court

59 P. 182

36 Or. 146

PERKINS v. McCULLOUGH et al.

Supreme Court of Oregon

December 4, 1899

Appeal from circuit court, Multnomah county; A.F. Sears, Jr., Judge.

Action by R.S. Perkins against B.F. McCullough and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action to recover the value of seven steers, one stag, and four cows, the property of plaintiff, alleged to have been unlawfully converted by the defendants to their own use. The defendants having in their second amended answer specifically denied each allegation of the complaint, a trial was had resulting in a judgment against them for the sum of $321 from which they appeal.

F.A.E. Starr, for appellants.

John C Leasure, for respondent.

MOORE J. (after stating the facts).

It is contended by defendants' counsel that the court erred in refusing to grant a judgment of nonsuit as to the defendant W.F. Matlock. This presents the question as to whether there was any evidence from which the jury could reasonably find that Matlock and the defendant B.F. McCullough acted in concert with reference to the conversion complained of. The statute provides that a judgment of nonsuit may be given when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury. Hill's Ann.Laws Or. § 246, subd. 3. In construing this section, we have held that, to authorize a judgment of nonsuit, there must be such a total failure of proof of a material allegation of the complaint as would require the trial court to set aside the verdict for want of evidence if the jury were to find for the plaintiff. Grant v. Baker, 12 Or. 329, 7 P. 318; Ferrera v. Parke, 19 Or. 141, 23 P. 883. A motion for a judgment of nonsuit is in the nature of a demurrer to the evidence, admitting, as a matter of law, the truth of that given by the plaintiff upon a material issue of the complaint, and every fair and legitimate inference of fact deducible therefrom, but asserting that the jury, from a consideration thereof, would not be authorized to find a verdict for the plaintiff. Brown v. Lumber Co., 24 Or. 315, 33 P. 557. The rule is well settled in this state that if there be any evidence, however slight, fairly susceptible of an inference or presumption tending to establish a material allegation of the complaint it is the duty of the court to deny the motion for a judgment of nonsuit, and submit the question involved to the jury for determination. Tippin v. Ward, 5 Or. 450; Southwell v. Beezley, 5 Or. 458; Salmon v. Olds, 9 Or. 488; Anderson v. Lumber Co., 21 Or. 281, 28 P. 5; Salmon v. Cress, 22 Or. 177, 29 P. 439; Ryberg v. Railway Co., 22 Or. 224, 29 P. 614; Herbert v. Dufur, 23 Or. 462, 32 P. 302; Hedin v. Railway Co., 26 Or. 155, 37 P. 540; Wallace v. Railway Co., 26 Or. 174, 37 P. 477; Vanbebber v. Plunkett, 26 Or. 562, 38 P. 707, 27 L.R.A. 811; Richmond v. McNeill, 31 Or. 342, 49 P. 879. The complaint having alleged a joint tort, before Matlock could be made responsible therefor the rules of law to which attention has been called require the production of evidence at the trial tending to show, or from which the jury might fairly and legitimately infer, that he participated therein, that McCullough performed the act at his request, or that it was done for his benefit, and was approved by him after its commission. 2 Hil. Torts (3d Ed.) 292; 2 Wood's Add. Torts, 542; Dahms v. Sears, 13 Or. 47, 11 P. 891; Cooper v. Blair, 14 Or. 255, 12 P. 370; Guille v. Swan, 10 Am.Dec. 234; Coats v. Darby, 2 N.Y. 517; Bishop v. Ely, 9 Johns. 294; Morgan v. Varick, 8 Wend. 587; Forbes v. Marsh, 15 Conn. 384; Brooks v. Ashburn, 9 Ga. 297.

The evidence in the case at bar tends to show that about December 1, 1893, one W.H. Babb was the owner of about 80 head of Holstein cattle, including those in question, and, being indebted to Matlock and others in large sums, he on that day executed in the name of his then wife, Hannah N. Babb, a lease thereof to one Peter Schwab, with intent to hinder delay, and defraud his creditors; that about January 31, 1895, Mrs. Babb transferred to plaintiff, her father, whatever interest she had in the cattle; that in May, 1895, Babb, claiming to be the owner of said cattle, with Schwab's consent took possession thereof, and surrendered the same to Matlock, who held them until the spring of 1896, when they were taken from him by order of court in an action to...