Rodgers v. Hodge
| Decision Date | 19 October 1909 |
| Parties | RODGERS v. HODGE. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court Of Sumter County; C. G Dantzler, Judge.
Action by Henry A. Rodgers against Thomas E. Hodge. Judgment for defendant, and plaintiff appeals. Affirmed.
A. B Stuckey, for appellant. Lee & Moise, for respondent.
In this action plaintiff sought to recover $100 damages of defendant for cutting and removing live or growing timber from plaintiff's land, and to restrain further cutting and removing of such timber; the complaint alleging that the contract between the parties embraced the sale of and right to remove only the timber lying down upon the land. The defendant answered, alleging that the contract was for sale of all the timber on the tract, down or standing suitable for sawmill purposes. The issue as to damages was submitted to a jury. Plaintiff introduced testimony to show that the sale of the timber was upon a verbal contract for the storm or blown down timber, that the value of the down timber was $50, the price paid by defendant, and the value of the down and standing timber was $400. Defendant introduced testimony to show that the contract included all the timber, down and standing, and that the down timber was worth not more than $15, and the standing timber not more than $35.
At the close of the testimony the plaintiff moved the court to allow the jury to visit the tract of land and view the timber and the stumps thereon. The court, after inquiring of the jury and ascertaining that they were equally divided as to whether they wished to view the premises, with hesitation decided to let the jury go upon the premises if they could go and return during the day. Finding this impossible on account of the distance to the premises, which was about nine miles away the court inquired if the jury could start about 7 o'clock the next morning, when one of the jury answered, "No." Finally the court concluded that, as the issue depended upon the terms of the contract, he did not deem it necessary to a just decision of the case for the jury to view the premises. After the jury were charged and retired to their room, they returned for further instructions, and asked the court to be allowed to view the premises, as they would not otherwise be satisfied to come to any agreement. The court declined to grant the request, stating that he did not see how it would help...
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