104 P. 719 | Or. | 1909
Opinion by
It is contended that an error was committed in overruling the demurrer. This action is based on a clause of the statute which provides generally, that if any person without the express consent of the lien claimant, render impossible of identification any saw logs or piles upon which there is a lien, such person shall be liable to the lienholder for damages to the extent of the sum so secured. Section 5692, B. & C. Comp. It is argued that the complaint having stated that the plaintiff between February 7, 1908, and March 21st of that year, performed labor in cutting saw logs and piles, he must necessarily have finished his work on the timber on or before March 20, 1908, and, as the plaintiff’s primary pleading avers that the
“If the evidence,” says a text-writer, “is equally balanced, or so close as to make it doubtful which party has presented the greater weight of evidence, then the verdict should be against the party on whom rests the burden of proof, and the refusal to give an instruction to that effect when properly requested, is error.” Hughes, Inst, to Juries, § 202.
An examination of the second requested instruction will show that the language suggested does not come within the legal principle quoted, and no error was committed in denying the request. The third request demands a measure of proof “beyond a reasonable doubt,” which degree of evidence is not required in the trial of civil actions, and hence the petition for the instruction was properly denied.
“If you should find from the evidence that the defendants appropriated to their own use a sufficient number of the logs mentioned in said complaint to amount to a sum of more or equal value to the judgment rendered in favor of plaintiff against L. D. Kinney on the foreclosure of his lien, then you will find a verdict for the plaintiff, provided you find that the logs were those subject to the lien of plaintiff as in the complaint alleged.”
This instruction is within the issues, is compatible with the plaintiff’s theory of the case, and complies with the provisions of the statute (Section 5692, B. & C. Comp.), and no error was committed in this respect.
Other errors are assigned; but, deeming them unimportant, the judgment is affirmed. Affirmed.