Rowan v. Beattie
| Decision Date | 27 November 1922 |
| Docket Number | 22746 |
| Citation | 130 Miss. 449,94 So. 232 |
| Court | Mississippi Supreme Court |
| Parties | ROWAN v. BEATTIE et al |
TRESPASS. Proof in suit for statutory penalties for cutting trees held insufficient.
Where a plaintiff files suit for statutory penalties and his contract shows that he contracted for "timbers to be taken from above twelve inches in diameter at the stump and up," his proof must show that the defendant cut such trees and the number of such trees so cut, and it is not sufficient to show the number of trees cut without showing that they would measure twelve Inches and over.
APPEAL from circuit court of Wilkinson county, HON. R. L. CORBAN Judge.
Suit by E. C. Rowan against Walter Beattie and others. From an order sustaining defendants' motion for peremptory instruction and the judgment entered, plaintiff appeals. Affirmed.
Judgment affirmed.
Ackland H. Jones, for appellant.
An examination of this record shows conclusively that the court erred in sustaining the motion to exclude all of plaintiff's evidence, and erred in instructing the jury to find for the defendants.
"A motion to exclude the evidence and instruct for the defendant is analogous to a demurrer to the evidence, and in the main is governed by the same rules. It admits the truth of all the evidence for the plaintiff. It admits all the facts which the evidence for the plaintiff tends to prove, or of which there was any evidence, however slight, and all inferences favorable to plaintiff which can logically and reasonably be drawn from the evidence. It waives all the evidence for the defendant which is contradictory to that of the other party, all his evidence the credit of which is impeached and all inferences from his evidence which do not necessarily flow from it. A motion to exclude the evidence should never be allowed unless it is plainly and unmistakably insufficient to maintain the issue, nor except in cases where the court would feel constrained to set aside the verdict for the opposite party as unwarranted by the evidence. If the evidence favorable to plaintiff, accepted as true, with all fair and reasonable inferences and deductions which might be drawn therefrom, makes a prima-facie case for plaintiff, the motion should not be allowed, but the case should be submitted to the jury, who, under our system, are deemed the best judges of the facts in evidence, and of all inferences to be drawn therefrom. If, thus considered, the evidence in the instant case made a prima-facie case for plaintiff, the motion to exclude should not have been allowed, Anderson v. Telephone Co., 86 Miss. 341, 350. This has been law for time out of mind; it has been iterated and reiterated time after time, and has been emphasized in case after case, even as late as Bonnelli v. Branciere, 90 So. 245.
A peremptory instruction is proper only when all the facts in evidence taken as true, with every just inference from them, fail to maintain the issue. Whitney v. Cook, 53 Miss. 551; Farmer v. Cumberland Tel. & Tel. Co., 86 Miss. 55.
The court below must have instructed the jury in this case, following and sustaining the motion to exclude, orally. So instruction in writing appears in the record, and there is nothing to show any filing by the clerk of any instruction.
To recapitulate:--Just where this case failed in conclusive proof, even with the adverse rulings and erroneous decisions of the trial judge, much less a prima-facie case, is beyond my understanding. Every essential fact was proved--title under written conveyance signed and delivered; possession under that conveyance; full compliance with the terms of the conveyance; recognition by the defendant of the title of plaintiff; the reckless tort and trespass of the defendants; the actual number of the trees cut and taken; the statutory period of time; the admission of the defendants of every fact alleged and to be inferred from the evidence; no attempt at justification by the defendants; each, all and every one fully proven and established, and even admitted and yet this motion is sustained, and peremptory instruction allowed.
I respectfully submit that the cause should be reversed.
David C. Bramlette, for appellees.
No proof any tree cut twelve inches in diameter or over. If appellant had made out a perfect case in every other respect, he could not recover because the timbers purported to be involved are: "From above twelve inches in diameter at the stump and up." See contract, supra. The testimony fails to show that a single tree cut was twelve inches in diameter or over. So far as the proof reveals, every tree cut might have been under twelve inches in diameter, in which appellant under the instrument introduced does not claim to assert any interest.
The appellant, E. C. Rowan, entered into a contract with Mrs. Thomas E. Murray for the sale of certain timber growing on lands therein described, said contract reading as follows:
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Teasley v. Roberson, 26672
...this is a suit for statutory penalty and actual damages flowing from it. To support this instruction we cite the case of Rowan v. Beattie, 130 Miss. 449, 94 So. 232. instructions complained of are drawn on the notice and special plea filed by defendant, that the land line that Roberson cut ......
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Teasley v. Roberson
...this is a suit for statutory penalty and actual damages flowing from it. To support this instruction we cite the case of Rowan v. Beattie, 130 Miss. 449, 94 So. 232. instructions complained of are drawn on the notice and special plea filed by defendant, that the land line that Roberson cut ......
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