77 Ark. 274 | Ark. | 1905
Lead Opinion
(after stating the facts.) The assignment of error in the motion for new trial that the verdict “was contrary to law” presents nothing for review on the ruling of the lower court in giving instructions. Ferguson v. Ehrenberg, 39 Ark. 420; Howcott v. Kilbourn, 44 Ark. 215.
The only questions presented here are whether the verdict was without evidence to support it, and whether it was excessive. These are questions of fact which it could serve no useful purpose to discuss. We are of the opinion that there was evidence sufficient here to support the verdict.
The verdict shows that the jury did not find any exemplary damages. Then to have assessed the amount of actual damages at $1,000 they must have allowed appellee for the full amount of the timber which had been cut, and which he says he lost by reason of appellant’s taking possession. The proof showed that there were some fifty thousand feet of this timber, valued at $7 per thousand, making $350. But the uncontradicted proof showed that this timber had been sold under ' execution, and bought by appellant before the bringing of this suit. This timber was therefore the property of appellant, and appellee could not have been damaged by its loss. The verdict was at least excessive as to this amount. If appellee will enter a remittitur of $350 in ten days, the judgment will be affirmed for the residue; otherwise, it will be reversed, and the cause remanded for new trial.
Rehearing
ON RRHRARING.
True, there is proof tending to show that appellant had taken possession of the hickory timber before he purchased same at the execution sale, and appellee claims that the timber rotted in the woods while in appellant’s possession. Appellee says the timber “rotted in the woods, and he lost it all.” But there is nothing in the record to show when the timber rotted, or how much it had rotted and was damaged before appellant purchased it under the execution. If 'the timber did not rot until appellant purchased it, appellee suffered no damage, and could not complain, for he might have protected himself at the sale. There is nothing in the record'to show that the timber was lost to appellee on account of the negligence of appellant. The broad language that the “timber rotted in the woods, and he lost it all” is too indefinite. Appellee, to have recovered damages on this account, should have shown that the rotting in the woods took place while appellant was in possession of the timber, and that on that account it sold for only $15, when otherwise it would have sold for its full value. The burden was upon the appellee, and we are of the opinion that the verdict was erroneous, under the state of proof, in allowing damages for the hickory timber which appellant had bought before the bringing of this suit. While $350 may be slightly more than should be remitted, yet we must fix the amount large enough to make sure that, when remitted, it will cure the error in the verdict. It is optional with the appellee whether he will accept it, or take a reversal and a new trial.
The motion for reconsideration is denied; and, if the remittitur is entered, the judgment will be affirmed for the residue.