Walling v. McMillan Sheep Co.

Decision Date03 March 1925
Citation234 P. 152,40 Idaho 513
PartiesS.D. WALLING, Respondent, v. MCMILLAN SHEEP COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

APPEAL AND ERROR.

Where there is conflict in the evidence, and there is evidence in the record which, if uncontradicted, would support the judgment, this court must affirm it.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action for damages for trespass of sheep. From a judgment for plaintiff and order denying new trial, defendant appeals. Affirmed in part and remanded, with instructions.

Affirmed.

Elliott & Healy and Frawley & Koelsch, for Appellant.

When the evidence clearly shows the verdict to be excessive, the judgment should be reversed. (Taylor v. Hall, 8 Idaho 757, 71 P. 116.)

To authorize plaintiff to recover on his third cause of action he must allege and show that he will be especially injured in a different way from the public generally. (Stricker v Hillis, 15 Idaho 709, 99 P. 831.)

P. E Cavaney, for Respondent.

"Where the evidence is sufficient to go to the jury, even though there be a conflict, the verdict will not be disturbed." (Hanson v. Seawell, 35 Idaho 92, 204 P. 660; Smith v. Benson, 32 Idaho 99, 178 P. 480; Fleming v. Benson, 32 Idaho 103, 178 P. 482; Chandler v. Little, 30 Idaho 119, 163 P. 299; McAlinden v. St. Maries H. Assn., 28 Idaho 657, Ann. Cas. 1918A, 380, 156 P. 115; Baker v. First National Bank, 25 Idaho 651, 139 P. 565; Montgomery v. Gray, 26 Idaho 583, 144 P. 646; MacMahan v. Cooper, 23 Idaho 413, 130 P. 456.)

"The presumption is that the court in fixing the amount of the damages awarded respondent only awarded such damages as he was entitled to recover by reason of the trespass of appellant's sheep and that the damages were properly segregated." (Foster v. Anschustigui, 37 Idaho 136, 215 P. 463.)

BAUM, District Judge. William A. Lee, C. J., Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

BAUM, District Judge.

This is an action for damages for trespass of sheep. The complaint contains three causes of action, the first cause being for the violation of C. S., secs. 1908 and 1909, the second cause of action for trespassing on lands owned by respondent and the destruction of a ditch thereon, and the third cause of action for trespass by the sheep belonging to appellant on a road which had been constructed by respondent as a means of ingress to and egress from his premises. A trial was had before the court sitting with a jury, and a verdict returned for respondent, on the first cause of action for $ 300, on the second cause of action for $ 500, and on the third cause of action for $ 100, upon which verdict judgment was thereafter entered. The defendant moved for a new trial, and from an order overruling such motion this appeal was prosecuted.

Appellant makes five assignments of error, as follows:

1. Error in overruling motion for new trial.

2. Excessive damages appearing to have been given under the influence of passion and prejudice.

3. Insufficiency of the evidence to justify the verdict.

4. Errors of law appearing at the trial; and

5. The verdict is contrary to law.

Assignments of error 2 and 3 may be considered together.

It is well settled that if there is conflict in the evidence and there is evidence in the record which, if uncontradicted, would support the judgment, this court must affirm it. (Singh v. McKee, 38 Idaho 656, 225 P. 400; Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037.) An examination of the record discloses that such is the case here as to the judgment entered on the verdict rendered on causes of action Nos. 2 and 3, and that such verdict rendered on causes of action Nos. 2 and 3 is supported as to the amounts by the evidence; but such is not the case as to the verdict rendered on the first cause of action.

The most favorable view that can be taken of the evidence introduced to support the first cause of action shows that respondent was the owner of thirty head of livestock consisting of horses and cattle, and that the pasturage was worth $ 2 per head for the remainder of the season, totaling $ 60. It is therefore apparent that the verdict as to this cause of action was unsupported as to the amount by the evidence, and that the jury in...

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9 cases
  • Smeed v. Stockmen's Loan Co.
    • United States
    • Idaho Supreme Court
    • 25 Enero 1930
    ... ... 1037; ... Smith v. Faris-Kesl Construction Co., 27 Idaho 407, ... 150 P. 25; Walling v. McMillan Sheep Co., 40 Idaho ... 513, 234 P. 152; Powelson v. Kinney, 40 Idaho 565, ... 234 P ... ...
  • Poulsen v. New Sweden Irr. Dist
    • United States
    • Idaho Supreme Court
    • 4 Noviembre 1946
    ... ... v. Dunn, 49 Idaho 241, 287 P. 201; Morton v ... Whitson, 45 Idaho 28, 260 P. 426; Walling v ... McMillan Sheep Co., 40 Idaho 513, 234 P. 152; ... Woodland v. Hodson, 35 Idaho 514, 207 P ... ...
  • Amalgamated Sugar Co. v. Murdock
    • United States
    • Idaho Supreme Court
    • 26 Abril 1928
    ... ... Finney, ... 9 Idaho 619, 75 P. 765; Singh v. McKee, 38 Idaho ... 656, 225 P. 400; Walling v. McMillan Sheep Co., 40 ... Idaho 513, 234 P. 152; Markam v. Davey, 42 Idaho ... 545, 247 P ... ...
  • Morton v. Whitson
    • United States
    • Idaho Supreme Court
    • 22 Octubre 1927
    ... ... Kelley, 34 Idaho 471, 201 P ... 1037; Singh v. McKee, 38 Idaho 656, 225 P. 400; ... Walling v. McMillan Sheep Co., 40 Idaho 513, 234 P ... Where ... the trial court has refused to ... ...
  • Request a trial to view additional results

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