Peterson v. Sucro, 4384.

• Decision Date: 19 January 1939
• Docket Number: No. 4384.,4384.
• Citation: 101 F.2d 282
• Parties: PETERSON et al. v. SUCRO.
• Court: U.S. Court of Appeals — Fourth Circuit

101 F.2d 282 (1939)

PETERSON et al. v. SUCRO.

No. 4384.

Circuit Court of Appeals, Fourth Circuit.

January 19, 1939.

W. A. Worth, of Elizabeth City, N. C., and W. D. Pruden, of Edenton, N. C. (Worth & Horner, of Elizabeth City, N. C., on the brief), for appellants.

P. W. McMullan, of Elizabeth City, N. C. (John H. Hall, of Elizabeth City, N. C., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and H. H. WATKINS, District Judge.

H. H. WATKINS, District Judge.

This action for the trial of title to land was instituted by appellee against appellants, who were therein and will be hereinafter respectively designated as plaintiff and defendants. The case was docketed at law and tried as an action in ejectment pursuant to the North Carolina practice. This is the second appeal. Upon the first trial defendants demanded that the case be submitted to a jury, but this was refused and the case referred to a special master, upon whose report the court rendered judgment in favor of the plaintiff. Appeal was taken upon several grounds, but the judgment was reversed solely upon the ground that the court committed error in refusing defendants' demand for a jury trial. Peterson et al. v. Sucro, 93 F.2d 878, 114 A.L. R. 890. Upon the second trial, which was had before a jury, the court directed a verdict in favor of the plaintiff, from which this appeal is taken.

Counsel for defendants first of all make the point that this direction of verdict was in violation of the former decision of the court in this case, their contention being that that decision not only became the law of the case, but required the actual submission of the cause to a jury without peremptory instruction. In support of this contention they cite the following authorities: Ferrell v. Metropolitan, 207 N.C. 51, 175 S.E. 692; Ferrell v. Metropolitan, 208 N.C. 420, 181 S.E. 327; Herr v. St. Louis & S. F. R. Co., 5 Cir., 174 F. 938; St. Louis & S. F. R. Co. v. Herr, 5 Cir., 193 F. 950. These cases, however, are easily distinguished from the instant case. The error complained of and for which the appeal in the instant case was sustained was the court's failure to grant to the defendants the right of a trial by jury. Instead of this, they were met at the beginning of the trial with the court's refusal to impanel a jury and to conduct the case as a jury trial. The error upon which the reversal was based was committed before any testimony was taken or offered and, therefore, had no reference to the sufficiency of the testimony. The decision must have been the same in that appeal whatever the testimony offered or even if none had been taken. A substantial right had been violated and it was the denial of this right that was passed upon. Furthermore, the language of the courts in the cases above referred to, and relied on by defendants, clearly indicated that the evidence at the second trial in each of the cases was substantially the same as in the first.

There is a long line of cases by the Supreme Court of North Carolina to the effect that although on a motion for a non-suit, or a directed verdict, the opposing evidence must be accepted as true, and every reasonable inference to be derived therefrom accepted in opponents favor, nevertheless, where evidence does no more than raise a conjecture or supposition of a fact alleged, the case should not be submitted to a jury. Circumstances which raise a mere possibility or conjecture, unless sustained by other evidence, should not be left to the jury as evidence of a fact which a party is required to prove. Whittington v. Va. Iron, Coal & Coke Co., 179 N.C. 647, 103 S.E. 395; Seagroves v. City of Winston, 167 N.C. 206, 83 S.E. 251; Poovey v. International Sugar Feed No. 2 Co., 191 N.C. 722, 133 S.E. 12. In the last mentioned case the court said page 14: "`The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than materials for a mere conjecture, the court will not leave the issue to be passed on by the jury.' * * * This rule is both just and sound. Any other interpretation of the law would unloose a jury to wander aimlessly in the fields of speculation." The court cited Brown v. Kinsey, 81 N.C. 245; Crescent Liquor Co. v. Johnson, Vaughan & Co., 161 N.C. 74, 77, 76 S.E. 625; State v. Prince, 182 N.C. 788, 790, 108 S.E. 330; Swann v. Martin, 191 N.C. 404, 132 S.E. 16. In Spruill v. Northwestern Mutual Life Ins. Co., 120 N.C. 141, 27 S.E. 39, the trial judge directed the jury to answer in the affirmative a question decisive of the case. The court held therein that the doctrine had been firmly established in North Carolina that where there is no evidence, or a mere scintilla of evidence, or the evidence is not sufficient in a just and reasonable view of it to warrant an inference of any fact in issue, the court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests. The court said that in every case there is a preliminary question, which is one of law, for the court to ascertain, to-wit, whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies, and added page 42: "If there is not, the judge ought to withdraw the question from the jury and direct a nonsuit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant. It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now well settled that the question for the judge (subject, of course, to review) is, as stated by Maule, J., in Jewell v. Parr, 13 C.B. 916, not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established." In the case of Crescent Liquor Co. v. Johnson, Vaughan & Co., supra, the question was discussed at some length by the court with citation of numerous authorities. The court said page 626: "However confidently one, in his own affairs, may base his judgment on mere probability as to a past event, when he assumes the burden of establishing such event as a proposition of fact and as a basis for the judgment of a court, he must adduce evidence other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for a mere guess, and must be such as tends to actual proof." To the same effect is the case of Brown v. King, 107 N.C. 313, 12 S.E. 137. The rule is the same in the federal courts. Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L.Ed. 720; McGuire v. Blount, 199 U.S. 142, 147, 26 S.Ct. 1, 50 L.Ed. 125; Garrison v. United States, 4 Cir., 62 F.2d 41.

The lands in question are situated in Dare County, on the Eastern Shore of North Carolina, at Nags Head, not far from the Virginia boundary, and were formerly embraced in Currituck County. Plaintiff asserted title in herself to a tract of 153½ acres granted by the State of North Carolina to her father, H. T. Greenleaf, on December 5, 1903. The complaint alleged that defendants had taken possession of a certain portion of this tract, had placed on record deeds assuming to convey the same, along with descriptive plats, had caused certain buildings to be erected thereon and had thereby cast a cloud upon plaintiff's title, for the removal of which this action was brought.

Defendants denied the validity of plaintiff's title and affirmatively asserted title in themselves both through grants and adverse possession. Upon the second trial a jury was impanelled and the case tried as an action in ejectment. The plaintiff first offered in evidence an original grant from the State of North Carolina to H. T. Greenleaf, dated December 5, 1903, duly recorded in the Dare County Public Registry on January 18, 1904, and also evidence locating the boundaries of said grant as delineated on the court map, and as contended by plaintiff. Further evidence was submitted proving the death intestate of H. T. Greenleaf and of his wife, and the names of all his heirs-at-law including plaintiff, and their respective husbands and wives. A deed was then introduced showing the conveyance to the plaintiff by all other interested parties, than herself, of the entire fee to said land. This deed was dated August 24, 1932, and duly recorded December 20, 1932. Plaintiff then offered evidence that the defendants claimed title to the respective parcels of land described in certain instruments referred to in the complaint and comprised in the land designated on the court map by boundaries, corners, courses and distances, this being a portion of the tract designated on the court map as "Peterson 47 Ac." Defendants admit that such was their claim. The court surveyor was sworn and testified briefly, and then H. T. Greenleaf, a brother of the plaintiff, was sworn and testified at considerable length. A portion of his testimony, which was undisputed, was to the effect that he was present when the county surveyor of Dare County made the survey preliminary to the issuance of the grant from the State of North Carolina to his father, H. T. Greenleaf, above referred to. He stated that they began the survey on the Atlantic coast or beach in Nags Head Township at a juniper post on the northeast corner of the Cobb lot as represented by the point marked "A" on the court map. He further testified that at the survey there were present the county surveyor, witness' father and several of his brothers, and that two people from Nags Head were brought over to show the beginning point, one of these being J. C. Peterson, the father of the defendant J. B. Peterson, who accompanied the surveyor when certain of the lines were run. He stated that the original corner was pointed out, that there was...