Reynolds v. McGehee

• Decision Date: 19 April 1954
• Docket Number: No. 39101,39101
• Citation: 220 Miss. 750,71 So.2d 780
• Parties: REYNOLDS v. McGEHEE.
• Court: Mississippi Supreme Court

Page 780

71 So.2d 780

220 Miss. 750

REYNOLDS v. McGEHEE.

No. 39101.

Supreme Court of Mississippi.

April 19, 1954.

B. D. Statham, Magnolia, for appellant.

Gordon & Gordon, Liberty, for appellee.

LEE, Justice.

J. M. Reynolds filed suit against Clinton McGehee, in the Circuit Court of Amite County, to recover the actual value and the statutory penalty on account of the alleged wrongful cutting of timber. The answer denied all material allegations of the declaration, but did not set up, as an affirmative defense, the good faith of the defendant in such cutting. At the conclusion of the evidence, the court, at the instance of the defendant, gave a peremptory instruction on the question of the statutory penalty, but submitted the question of actual value. The jury found for the defendant, and Reynolds appealed.

For a consideration of $9,000, Reynolds sold to McGehee the merchantable pine and hardwood timber 'eight inches and up in diameter at the stump ten inches above the ground when cut' on 395 acres of land. According to the contract, if the value of the timber when cut, based on $30 per thousand for pine and $10 per thousand for hardwood, exceeded the named consideration, then McGehee was to pay the excess.

Reynolds testified that, about the last day of the cutting, McGehee admitted that he cut approximately 150 trees under eight inches, and that they were worth around $90. McGehee did not deny that he made such admission.

J. S. McCoy testified that he measured the trees under eight inches, which had been cut; that there were 200 of them; and that they had an actual value of between $75 and $100. On cross-examination, however, he admitted that, in his measurement, he used the bark on one side and went to the bark on the other.

The recognized rule, in such case, is to measure from outside to outside, including the bark. Craddock Manufacturing Company v. Faison, 138 Va. 665, 123 S.E. 535, 39 A.L.R. 1309; Hardison v. Dennis Simmons Lumber Company, 136 N.C. 173, 48 S.E. 588; Alcutt v. Lakin, 33 N.H. 507, 66 Am.Dec. 739, 741. Consequently, McCoy's measurement was inaccurate.

But McGehee did not deny Reynolds statement and thus make it nugatory. 31 C.J.S., Evidence, Sec. 379, page 1164. Voluntary and unequivocal 'admissions against interest are taken or presumed to be true, and dispense with the necessity of any other proof of the fact admitted, although it does not render other proof of the fact incompetent.' 31 C.J.S., Evidence, Sec. 382a, page 1180.

Besides, an admission alone may be sufficient to establish the fact admitted. See 31 C.J.S., Evidence, Sec. 382b, page 1184, as follows: 'In the absence of opposing evidence or in the light of the surrounding circumstances or other evidence in the case, an admission against interest may be sufficient to establish the fact admitted, or the cause of action or liability or defense resting on proof of such fact, and it has been considered that cogent or full and unquestioned proof is required to overcome the effect of a deliberate admission.'

On the proof there was therefore no basis whatever to warrant the jury in returning a verdict for the defendant on the issue submitted.

Now Section 1075, Code of 1942, as regards the infliction of the statutory penalty, has been frequently construed by this Court. Some of the cases are: Therrell v. Ellis, 83 Miss. 494, 35 So. 826; Ladnier v. Ingram Day Lumber Co., 135 Miss. 632, 100 So. 369; Murphy v. Seward, 145 Miss. 713, 110 So....