Pemiscot Land & Cooperage Co. v. Davis

1. APPELLATE PRACTICE: Overruling Challenge of Juror: Necessity of Calling Attention to Error in Motion for New Trial. The error in overruling a challenge of a juror will not he considered on appeal, where the point was not saved by motion for new trial and where it does not appear the- juror was on the panel selected to try the case. 2. JURORS: Competency: Relationship to Parties: Affinity. Section 3785, Revised Statutes 1899, forbidding the impaneling of a juror of kin to either party within the fourth degree of consanguinity or affinity, disqualifies a juror who is a second cousin of the wife of one- of the parties, because he is within the fourth degree of “affinity,” which is the relationship 'by marriage between a husband and his wife’s blood relations or between a wife and her husband’s blood relations. 3. STATUTE OF LIMITATIONS: Trespass to Real -Estate: Burden of Proof. Where, in an action for single damages for trespass by cutting and removing timber, the total amount of the timber cut and removed and the value thereof were proved, the burden was on defendant, relying on the five-year Statute of Limitations (section 4273, Revised Statutes 1899), to show what timber was cut prior to the five years before the bringing of the action and the value thereof, so that such value could be deducted from the value of all timber cut and removed. 4. -: Burden of Proof. A defendant who pleads the Statute of Limitations has the burden of bringing himself within the statute; and this burden rests on him throughout all the incidents involved in the plea.

Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge. (1) The court erred in failing to excuse juror Eobert Pophaxn. Sec. 3785, E. S. 1899; Mahaney v. Eailroad, 108 Mo. 191; State v. Walton, 74 Mo. 285. (2) The verdict was for nominal damages and under-the law and evidence in this case there was no nominal’ damage in the case. 8 Am. and Eng. Ency. of Law (2 Ed.), p. 542; Bouvier’s Law Dictionary, “Damage;”' Black’s Law Dictionary, “Nominal Damages.” As if' where plaintiff proved damages but failed to prove the-amonnt, he is entitled to nominal damages. Brown v.Emerson, 18 Mo. 103; Owens v. O’Eiley, 20 Mo. 603;-: Hayes v. Delzell, 21 Mo. App. 679; Breen v. Fairbank, 35’ Mo. App. 212. But that is not the case here, for the defendants admit that they cut the timber on this land, and sale bill shows it; the man who cut the timber swears, and both defendants who testify state, that they got the timber. (3) The court erred in its instructions numbers 1, 2, 3 and 4 for respondents, (a) “The Five Years’ Statute of Limitations to he a defense-to defendants must be by them pleaded.” Stoddard Co-., v. Malone, 115 Mo. 508; Murphy v. DeFrance, 105 Mot 53; Bell v. Clark, 30 Mo. App. 224. (b) “The burden of showing exemption from the operation of the Statute-of Limitations is upon the party claiming the exemptions.” Campbell v. Laclede Gas Co., 84 Mo. 352.;: Knoche v. Whitman, 86 Mo. App. 568; Feurt v. Ambrose;. 34 Mo. App; 360; 19 Am. and Eng. Ency. of Law, (2‘ Ed.), 332; Combes v. Smith, 78 Mo. 32, 1. c. 40-41;: Gray’s Arbor Com. Co. v. Bank, 74 Mo. App. 633; St Louis Tow Co. v. Ins. Co., 52 Mo. 529. (c) “In a case of continuous trespass, the action is barred as to so much of the wrong only as was committed prior to the term of the limitations.” Graft v. City of St.: Louis,. & Mo. App. 562. (1) Even if the court committed error in not sustaining appellant’s challenge to the juror, Robert P.opham, yet as it raises no- such question in its motion for a new trial this court cannot consider-1 it. R. S. 1899, Sec. 640; State v. Tomasitz, 144 Mo. 91; Lynch v. Railroad, 208 Mo. 42. (2) Defendants by the general denial plead in this case put in issue among other things the amount of damages sustained by the plaintiff and it was incumbent on it to prove the amount. Hayes v. Delzell, 21 Mo. App. 684; Breen v. Fairbank & Co., 35 Mo. App. 216; Webb v. Coonce, 11 Mo. 9. Defendant’s plea of the Statute of Limitations is not inconsistent with their general denial for they both may be true and the one does not contradict the other. Enos v. Railroad, 41 Mo. App. 268. Statement. — Action by plaintiff, appellant, here, against respondents, for $500 damages claimed to be due for trespass on lands of plaintiff, cutting and removing therefrom a lot of timber and converting the timber to the respondents’ use. The action was commenced in the circuit court of Pemiscot county, on the 25th day of April, 1907. The answer is a general denial and the plea of the five years Statute of Limitations (section 4273, R. S. 1899), single damages alone being demanded, not the treble damages recoverable under section 4572, under which latter the three years limitation would apply. Trial before court and jury. When the jurors were being examined upon voir dire,,one of the jurors stated that he was a second cousin to the wife of one of the defendants. He was challenged for cause by the plaintiff, the challenge overruled and exception saved. There was evidence in the case tending to show that while neither plaintiff nor defendants were in possession of the land, the legal title was in plaintiff. There-was also evidence tending to show that the defendants were claiming under a bill of sale for the timber, made to them by one Davis, on the 22d of May, 1901, who claimed by virtue of a tax deed of date September 9, 1897, the suit under which the sale was had and the deed made being against two parties, neither of whom appear to have had any title to the land at the date of the suit. There was evidence on behalf of plaintiff to the effect that the timber had been cut and taken from the land by parties acting under order of the defendants not over three years before the beginning of the suit. There was also evidence tending to show the number of feet cut and its value, somewhere around $150. A witness for plaintiff testified that he. had cut this timber off of the land, of which the land in controversy was a part; that to the best of his recollection the last of the timber was cut and removed from the land in July, 1902. A witness for defendants testified in direct examination, that none of the timber was cut later than April 25, 1902, but on cross-examination, he admitted that he did not know when the last was cut and whether the last that was cut, was cut off of the land in controversy; that he paid no attention to dates; could .not say exactly when they finished cutting on the land in controversy; could not say in what month in 1902 the timber cutters got through cutting on this land; could not say that it was not in the month of July, 1902; that what he means, to say was that the last that was cut was in July, 1902, but whether that cutting was off of this land or snot, he would not undertake to say. He further testified that he did not know and was not willing to say whether any timber was cut off of this land before the 25th of' April, 1902, or not. One of the defendants testifying, said in effect that he would not say that the timber which had been cut off this land had been cut off and removed before the 25th of April, 1902. In brief, while the testimony tended to show timber had been cut off this land after April 25, 1902, it did not show just how much of that cut and removed from the tract had been after that date; that is, it did not definitely show how much had been cut and removed within the five years, nor how much before the beginning of the five-years period. At the conclusion of the testimony, the court, at the instance of plaintiff, gave four instructions. The first was to the effect that under the evidence in the case neither of the defendants had any title to the land described in the petition nor any right or title to the timber on the land, and that the deeds and contracts read in evidence gave to plaintiff the right to sue and recover for any and all timber removed from the land by these defendants .or either of them, or their agents or servants or employees, within the five years immediately prior to April 25, 1907, the date of which this action was begun, and if the jury found from the evidence that the defendants, through their agents or employees or in person, entered upon the land and cut and removed the timber within five years immediately prior to April 25, 1907, and converted the same to their own use and benefit, the jury would find the issues for the plaintiff, “in whatever sum you may find it to have been damaged by reason of the conversion of the timber as aforesaid, and assess its damages in a sum not exceeding $500.” In the second instruction given at the instance of plaintiff, the jury were told, in substance, that if they found for plaintiff they would, in assessing its damages, take into consideration the amount of timber taken from the land by one of the defendants (Reynolds) or his agents, within five years next prior to April 27, 1907, and upon this amount of timber the jury would compute its damage, by taking the market value of the timber at that time and place and allowing the plaintiff such sum as the jury would find to have been the reasonable market value of the timber at that time and place, not exceeding five hundred dollars. The third instruction given at the instance of plaintiff was as to the bar of tbe Statute of Limitations plead by the defendants, and as to that the court instructed the jury that the burthen of proving that the canse of action accrued more than five years before the commencement of the action, rests upon the defendants, and that unless the defendants “prove to you by the preponderance or' greater weight of evidence that the timber they removed from the land was removed more than five years before the institution of this action, then such defense will not avail, and you will find for the plaintiff.” By the fourth instruction given at the instance of plaintiff, the jury were told that if they found the issues for plaintiff, they could find against both the defendants or against either, but if they found against one alone they must specify that one in their verdict. At the instance of the defendant the court also gave four instructions. The first told the jury that nominal damages, as used in the instructions, is defined to be' damages ranging from one cent to one dollar, but no more or greater sum. The second told the jury that they could not find for plaintiff for any timber cnt or converted prior to the 25th of April, 1902. The third instruction told the jury, in substance, that although they might find and believe from the evidence that the defendants, or either of them, have, since the 25th of April, 1902, cut timber from the lands described in the petition, “yet before you can find for the plaintiff for more than nominal damages, you must find, by a greater weight or preponderance of the testimony, the amount of timber so cut by the defendants, or either of them, since said 25th day of April, 1902, and the value thereof.” The fourth instruction told the jnry that although they might find from the evidence in the case that the defendants cut or caused to be cut, timber off of the lands since the 25th of April, 1902, they could not find for plaintiff for more than nominal damages, “unless the quantity of timber cut and the reasonable market value of the said timber so cut since the said date has been shown by the evidence in this case.” The plaintiff duly excepted to the giving of these instructions. Nine of the jurors returned a verdict for plaintiff and assessed its damages at the sum of one dollar. Judgment followed accordingly, a motion for new trial was filed, which was overruled, exceptions being saved, and an appeal duly perfected to this court by the plaintiff.