46 W. Va. 6 | W. Va. | 1899
Jane Davis brought her action of detinue on the 32d day of July, 1897, before Justice George Ritter, against B. H. Webb, to recover two oxen, “Buck” and “Bright,” of the value of thirty-seven dollars and fifty cents each, and one yoke and bows, of the value of one dollar and seventy-five cents, and claiming one hundred’.dollars damages for the detention thereof. The case was tried on the general issue by the justice August 6th, and judgment rendered for the plaintiff for the property, or the alternative value thereof, seventy-five dollars and fifty-six cents, and fifteen dollars and six cents damages, when defendant appealed the case to the circuit court of Kanawha County; and on the 2nd day of November, 1897, the case was tried before a jury of six upon the same pleadings, and the jury found for the plaintiff, and ascertained the value of the property to be thirty-seven dollars and fifty cents for each ox, and one dollar for the yoke and bows, aggregating seventy-six dollars, and sixty dollars damages fbr the detention of the property. Defendant moved the court to set aside the verdict because it was contrary to the law and the evidence, and grant him a new trial, which motion the court overruled, to which ruling of the court defendant excepted; and the court entered judgment upon said verdict against said defendant for the property, and against defendant and B. H. Newcomer, J. E. Chilton, I. Bryan, and J. H. Robinson for the said seventy-six dollars, the alternative value of the property, and said sum of sixty ' dollars damages so ascertained and assessed by the jury. On the trial of the case, defendant took two bills of exceptions, which were duly signed and made a part of the record; the first excepting to the ruling of the court in refusing to set aside the verdict and grant him a new trial, which bill set out all the evidence in the case; the other excepting to the ruling of the court in refusing to give to the jury instructions numbered one to six, inclusive, asked by defendant. Defendant obtained a writ of error and supersedeas^ assigning as
The first question to be settled is the jurisdiction of this Court in the case. Appellee insists that the only matter in controversy in the case is the specific property sued for, or its alternative value, and cites Elliott, App. Proc. § 66, quoting the last clause: “This is so for the reason that the paramount issue is that of the right to the ownership or to the possession of the specific personal property; and damages, whatever their amount, constitute a mere incident of the principal issue.” The writer was writing upon the statute of Indiana, and in the same section he says: “The language of the statute is ver3^ broad and comprehensive. There is neither limitation nor exception. No restriction is expressed or implied, for all actions for the recovery of specific personal property are declared to he within the jurisdiction of the appellate court. * * * Nor is it material what the amount of damages may be; for, irrespective of the element of damages, the jurisdiction is in the new tribunal if the action is for the recovei'y of specific personal property. ” We have no such statute. Section 4, chapter 113, of our Code, provides that “the appellate jurisdiction shall extend to civil .cases when the matter in controversy, exclusive of costs, is of greater value or amount than $100.” Judge GkeeN, in Railroad Co. v. Foreman, 24 W. Va., at page 668, says, “The amount in controversy in this Court determines, it is true, the jurisdiction in this Court, and not the amount which may have been in controversy in the court below,’’and cites Rymer v. Hawkins, 18 W. Va. 309. What is the matter in controversy now here in this Court? Is it the possession or ownership of the specific personal property sued for, or its alternative value? It seems clear that it is a question of reversing or affirming a judgment of the circuit court for the aggregate sum of one hundred and thirty-six dollars, exclusive of costs, or for the recovery of property of the value of seventy-six dollars, and sixty dollars damages. While it may he true that the finding for damages may “constitute a mere incident to the principal issue,” yet it is a very material part
'The instructions asked for by defendant and refused by the court are as follows; “(1) The court instructs the jury that the declarations and statements made by the plaintiff, Jane Davis, as to the ownership, should be considered by the jury in determining the title to the cattle in question. (2) The court instructs the jury that, in finding a verdict, thej^ must consider the statements of the plaintiff, Mrs. Davis, to George Slevens, William Wooten, Anderson Pauley, Nettie Dunlap, and Henry Blake, as sworn to by them, that the cattle belonged to Tom Davis. (3) If the jury find from the evidence that the title to the property was in Mr. Davis at the time he delivered same to the defendant, Webb, they must find for the' defendant. (4) The court instructs the jury that the plaintiff must have a preponderance of testimony in order to recover. (5) The court
There was evidence tending to prove declarations and statements made by plaintiff concerning tfie ownership of tfie property which were adverse to fier ownership, and also tending to prove tfie ownership in fier husband, who sold tfie property to defendant. Instruction No. 1 simply told tfie jury tfiat they should consider such declarations and statements in determining tfie title to tfie cattle in question, assuming tfiat it must have been proven to the satisfaction of tfie jury tfiat plaintiff had made such declarations and statements. Plaintiff, in her testimony, denied positively tfiat she made them. Tfie instruction should have provided further, to be proper to be given, tfiat such declarations and statements should be considered in case tfie jury believed from tfie evidence tfiat they were made by the plaintiff. Instruction No. 2 is subject to tfie same criticism, but more likely to mislead tfie jury than tfie first, as it provides tfiat the jury must consider tfie
Instructions Nos. 3 and 4 were clearly right, and should have been given. In Bank v. Waddill, 27 Grat. 451, Judge Staples, in writing the opinion for the court, says: “It will not be disputed that whenever an erroneous instruction is given, or, what is the same thing, a correct one refused, the judgment will be reversed, unless the appellate court can see from the whole record that even under correct instructions a different verdict could not have been rightly found, or unless it is able to perceive that the erroneous ruling of the trying court could not have influenced the jury.” In the case of Nicholas v. Kershner, 20 W. Va. 251, this was quoted with approval; and in Wiley v. Givens, 6 Grat. 277, it was held that, “an erroneous instruction having been given by the court below, the appellate court could look no further than to the propriety of the instruction given, and, if that was erroneous, the judgment would be reversed, and a new trial granted.”
Instruction No. 5 would be good in case there was any evidence tending to prove that defendant knew of such representations being made by plaintiff as to the property belonging to her husband, and that he relied upon such representations, and believed them to be true, and bought said cattle, in good faith, as the property of the husband, because he so relied on them; but it does not appear that such representations were made to him, or that he even knew they were made. In his testimony he says nothing about it, and, while the representations so made by her were proper to be proven upon the issue as touching the ownership of the property, yet the instruction would be calculated to confuse and mislead the jury, unless there was some evidence upon which to base the last part of the instructions; and, there being none, it was properly rejected.
The sixth instruction is objected to because: “It does not propound the law correctly. Neither is it in accord-
Instructions 3, 4, and 6 properly propound the law, and should have been given. It is the plain duty of a trial court, when asked to do so by either party, to instruct the
Reversed.