Ray v. Thompson

• Citation: 26 Mo.App. 431
• Parties: JESSE RAY, Respondent, v. A. P. THOMPSON, Appellant.
• Decision Date: 23 May 1887
• Court: Court of Appeals of Kansas

26 Mo.App. 431

JESSE RAY, Respondent, v. A. P. THOMPSON, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

Statement of case by the court.

This was an action for trespass, under section 3922, Revised Statutes, against the defendant for entering plaintiff's premises and voluntarily throwing down plaintiff's fences, etc. The plaintiff introduced in evidence defendant as a witness, who testified that he bought the land in controversy in September, 1885, of Phillips, and that, in October or November following, he had the fences around the land torn down and the streets graded through the land, and that, before the fences were thrown down, he received a notice from the plaintiff's attorney, in writing, stating that plaintiff claimed the right to hold the land under a lease till the first of March following. The defendant, on cross-examination, and afterwards, offered to testify to what Phillips, his vendor, said to him as to when the plaintiff's lease would terminate. The court sustained an objection made by plaintiff to the offer of such evidence. But afterwards Phillips, himself, testified on behalf of defendant to what he told the defendant in relation to the matter. According to the statement thus made by Phillips, the plaintiff's lease had terminated before the defendant had committed the acts complained of.

The jury found a verdict against the defendant, and assessed the plaintiff's damages at the sum of sixty-five dollars. Upon the verdict the court rendered judgment against the defendant for the sum of five dollars and double the amount of damages assessed by the jury, the judgment being in the aggregate for the sum of one hundred and thirty-five dollars. The sum of five dollars was adjudged against the defendant on account of the verdict of guilty against him by reason of section 3922, which provides for the payment of five dollars and double damages to the injured party by one guilty of its provisions. The highest amount of damages which the evidence tended to show that the plaintiff had sustained was the sum of forty-five dollars. In due time the defendant filed a motion for a new trial, assigning as grounds thereof, among other grounds, the following: (1) The verdict is not sustained by the evidence, and (2) said verdict is contrary to the law and the evidence. Afterwards the plaintiff, by permission of the court, remitted fifty dollars of the judgment, reducing it to the sum of eighty-five dollars.

L. C SLAVENS, for the appellant.

I. This action was begun under section 3922, section 3923, and section 3924, of the Revised Statutes of Missouri 1879, p. 669. The last section above named is as follows " Section 3924. Single damages to be recovered when.--On the trial of any action or prosecution brought upon this statute, if it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured or destroyed was his own, the plaintiff in the action, or prosecution, shall receive single damages only, with costs." I claim that the court erred (1) In refusing to allow the defendant to testify as to what Phillips told him about Ray's lease; when it was to terminate, etc., as bearing upon the question whether defendant had probable cause to believe the property was his own, when he had the fences torn away and streets graded. (2) In refusing to grant a new trial.

II. It seems to have been conceded that the verdict was contrary to the law and the evidence, and not sustained by any evidence, and plaintiff was allowed to enter a remittitur of fifty dollars. This did not cure the error, and a new trial should have been granted notwithstanding the remittitur. Koeltz v. Bleckman, 46 Mo. 320. The verdict was a palpable, flagrant disregard by the jury of their oaths to try the case according to the law and evidence, and is no verdict at all.

III. As to the error of the court in excluding the testimony of the defendant bearing upon the question of his having reasonable cause to believe the property was his own, when he had the fences removed, the mere statement of the proposition is all that is needed.

CHARLES B. ADAMS and ADAMS & FIELD, for the respondent.

I. There is nothing in the first point raised by appellant. The testimony excluded was clearly incompetent, and properly excluded. Even if there was error in so excluding, it was, afterwards, cured by the testimony of another witness, who disclosed fully the conversation first excluded.

II. The question of probable cause was fairly presented and considered by the court. Defendant admitted that he received notice of plaintiff's rights, and no claim was made that he acted in ignorance of those rights. The want of probable cause was shown by defendant's own admissions.

III. The appellate court will not consider grounds of objection not specifically stated in the motion for a new trial. " All motions shall be accompanied by a written specification of the reasons upon which they are founded, and no reason not so specified shall be urged in support of the motion. " Rev. Stat., 1879, sect. 3557, p. 608. The objection that " the damages are excessive" was not specifically raised by defendant, in his motion for a new trial. " The ground of excessive damages, as a cause for a new trial, is not embraced in the assignment that the verdict is not sustained by sufficient evidence," or " is contrary to law." Spurner v. Briggs, 17 Ind. 529; Carver v. Thornhill, 53 Mo. 283; Cowen v. Railroad, 48 Mo. 556; Saxton v. Allen, 49 Mo. 417; Hulett v. Nugent, 71 Mo. 131; Vineyard v. Matney, 68 Mo. 105; Brady v. Connelly, 52 Mo. 19; McClain v. Dibble, 13 Bush (Ky.) 297; Coleman v. Gilmore, 49 Cal. 340; Hill v. Weisler, 49 Cal. 147.

IV. If the damages were excessive, the error was cured by the remittitur entered by plaintiff. The amount remaining, after the remittitur, was supported by the weight of the evidence. It was the province and duty of the court to allow plaintiff to remit the excess of damages, in order to save the expense and delay of further litigation. Interest rei publicæ ut sit finis litium. This is the well-established practice in this state, being settled by a long line of decisions. See Hoyt v. Reed, 16 Mo. 294; Johnson v. Robertson, 1 Mo. 615; McAllister v. Mullanphy, 3 Mo. 38; Hahn v. Sweazea, 29 Mo. 199; Walser v. Thies, 56 Mo. 89; Waldhier v. Railroad, 87 Mo. 37; Kimes v. Railroad, 85 Mo. 611; Buse v. Russell, 86 Mo. 209. This practice prevails, also, in New York, Indiana, and other states. See Sears v. Conover, 4 Abbott (N. Y.) App. Dec. 179; Hill v. Newman, 47 Ind. 187; James River Co. v. Adams, 17 Grat. 427; Manson v. Robinson, 37 Wis. 339; Steadman v. Simmons, 39 Ga. 591.

V. The question as to double damages was not before the jury; that was a matter to be determined by the court, after verdict; hence, the exclusion of alleged evidence as to probable cause, before the jury, was not error. In Koeltz v. Bleckman (46 Mo. 320), the verdict exceeded the amount claimed in the petition; hence, held bad. Such is not this case.

I.

HALL J.

The defendant complains of the...