Gay v. . Mitchell

| N.C. | Feb 19, 1908

On the issues submitted, and verdict thereon, there was judgment for plaintiffs against defendant James S. Mitchell, and defendants excepted and appealed. After giving the matter most careful consideration, the Court is unable to find any error in the proceedings below which entitles appellant to a new trial.

The evidence tended to show that plaintiffs owned and were in possession of a mill and machinery; that on 25 January, 1899, the defendant, as sheriff, wrongfully seized said property under an attachment process issued against other persons, and held same until about the middle of February following; that the said mill and machinery were in good order when seized by defendant, and while said defendant had charge of same the property was much damaged by "freezing and rusting of pipes and tubes and other parts of the machinery," and that this damage could have been readily prevented by ordinary care and attention on the part of defendant. On this testimony, if believed, an actionable wrong was undoubtedly established, and under the charge of the court the jury properly awarded the actual damages, which were the "natural, probable, and direct result of defendant's wrong." We do not well see how any other verdict could have been rendered; and while the charge of the court was somewhat general in its terms, it was a correct charge, and if the defendant desired that it should be more specific, he should have indicated this requirement by (511) correct prayers for instructions, properly preferred. Simmons v.Davenport, 140 N.C. 407" court="N.C." date_filed="1906-02-27" href="https://app.midpage.ai/document/simmons-v-davenport-3670620?utm_source=webapp" opinion_id="3670620">140 N.C. 407. The special prayer which was made, and refused by the court, was not permissible on the facts as they appear in the case on appeal. Nor does the defendant's application for a new trial for newly discovered evidence commend itself to the favorable consideration of the Court. At best, the evidence, as indicated in the affidavits filed, is only cumulative, and the defendant fails to show that he used the diligence in procuring the evidence which is required by the decisions of the Court in applications of this character. Wilkie v. R. R., 127 N.C. 213;Turner v. Davis, 132 N.C. 187" court="N.C." date_filed="1903-03-24" href="https://app.midpage.ai/document/turner-v-davis-3643775?utm_source=webapp" opinion_id="3643775">132 N.C. 187-190.

No error.

Cited: Myatt v. Myatt, 149 N.C. 142" court="N.C." date_filed="1908-11-19" href="https://app.midpage.ai/document/beeson-v--smith-3664642?utm_source=webapp" opinion_id="3664642">149 N.C. 142; Hardy v. Lumber Co., 160 N.C. 123;Coal Co. v. Fain, 171 N.C. 648; Webb v. Rosemond, 172 N.C. 851.