Reid v. Brown

• Decision Date: 25 January 1952
• Docket Number: No. 5449,5449
• Citation: 56 N.M. 65,1952 NMSC 14,240 P.2d 213
• Parties: REID v. BROWN et al.
• Court: New Mexico Supreme Court

Page 213

240 P.2d 213

56 N.M. 65

REID v. BROWN et al.

No. 5449.

Supreme Court of New Mexico.

Jan. 25, 1952.

G. T. Watts, Roswell, for appellants.

G. T. Hanners, Lovington, for appellee.

COMPTON, Justice.

This is an appeal from a judgment, following the verdict of a jury, awarding damages for the unlawful killing of cattle. It is charged that the verdict is not supported by substantial evidence. It is also claimed that the court erred in the admission of certain evidence.

When a verdict is attacked as being unsupported, the power of the appellate court ends with a determination whether there is substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury; and, in reviewing evidence on appeal, the court must view the evidence in the most favorable aspect, indulging in all reasonable inferences to be drawn therefrom, and disregarding all unfavorable testimony and inferences, to uphold the verdict. When more than one inference can be deduced from the facts, the reviewing court cannot substitute its deductions for those of the jury.

Applying the foregoing rules, we conclude that the verdict should be sustained. On November 30, 1948, appellant Lynn Brown executed and delivered a grazing lease covering two sections of land to appellee for a period of three years commencing January 1, 1949, and ending January 1, 1952. He continued to live on the land until December 29, 1948, then moved to Clovis. Appellants were married on December 28, 1948, and maintained their home in Clovis except for short intervals when they would return to the ranch and occupy a small house located thereon. On one occasion they remained on the ranch five weeks. Two or three days after their marriage, Lynn Brown conveyed the ranch, except 320 acres, to his wife. Subsequently, a heated controversy arose with respect to the terms of the lease, the Browns claiming that by reason of certain acts of appellee, the lease had become forfeited. So, on the early morning of December 12, 1949, they went to the home of appellee who lived on an adjoining ranch and made demands for possession and that appellee remove his cattle therefrom. The demands were made by Mrs. Brown, though Lynn Brown was present. Appellee explained to her that he had leased the place from Lynn Brown before their marriage and that they could not dispossess him. Thereupon, Mrs. Brown stated that unless the cattle were removed from the ranch by January 1, 1949, she would 'kill every ___ _____ one of them.'

At the time of the foregoing conversation, appellee had 22 head of cattle on the ranch. On the late afternoon of January 5, 1949, (Friday) he went to the ranch, putting out mineral salt, and counted the cattle. It was then noticed that a windmill on the premises was not pumping properly and on the following morning, he returned to repair it. After doing so, he again rode over the ranch to see the cattle. About a quarter of a mile from the mill, he first found a dead bull. A short distance farther he found several dead cows, most of them close together and all within a radius of a quarter of a mile. The incident was reported to the sheriff and an effort was made to determine the cause of death. Specimen from two cows were sent to a laboratory for analysis. The laboratory test was negative. An analysis of the water and salt likewise failed to disclose a clue as to the cause of death. There were no signs that the cattle had been shot, nor were there other signs of violence upon them. The cattle ranged in age from three to six years and were in fair physical condition. At the time, there had been no storms or lightning in the area. There is evidence that where cattle die from natural causes, they dig depressions in the ground, due to death struggle. There were no such signs present. Mrs. Brown first denied and then admitted that they had been at the ranch the night before the cattle were found dead the following morning.

The burden was upon appellee to prove by a preponderance of evidence that the appellants killed the cattle as charged, but this need not be done by direct evidence but may be shown by circumstantial evidence alone. Whether the circumstances are sufficient is in the first instance for the trier of the facts.

We are convinced that the facts and circumstances, when considered in the light of Mrs. Brown's assertion that she would kill the cattle, warrants a reasonable inference that the most probable cause of th death of the cattle was the result of appellants' acts. The most probable cause having been established, it was not incumbent upon appellee to exclude all possible causes. State v. Jones, 39 N.M. 395, 48 P.2d 403; Clower v. Grossman, 55 N.M. 546, 237 P.2d 353.

Furthermore, when counsel for appellants made an opening statement to the jury, it was asserted the evidence would show that appellants were not at the ranch when the cattle died, thereby suggesting an alibi as a defense. Mrs. Brown, being called as an adverse witness, testified as follows:

'Q. State your name? A. Mrs. Lynn Brown.

'Q. It is stated in the Complaint that the cattle of Henry Reid were found dead on the morning of January 7th, 1950, which would be on Saturday; did you and your husband spend Friday night at his house on this land? A. No, sir.

'Q. Did you spend any part of it? A. No, sir.

'Q. Did you stay at that...