Opinion
No. 33193.
May 2, 1938.
1. APPEAL AND ERROR.
Where action was not tried until more than three years after institution thereof, presumption existed that it was continued from term to term by consent, otherwise it would have been dismissed under statute (Code 1930, section 667).
2. TRIAL.
In excluding the evidence of a party litigant, everything in that evidence and every reasonable inference to be drawn therefrom in favor of that litigant must be taken as truthful proof in his behalf.
3. NEGLIGENCE.
In tort action for damage caused by fire, the plaintiff must show with fair or reasonable certainty or definiteness that the party charged is the party actually responsible for the wrong (Code 1930, section 3422).
4. APPEAL AND ERROR.
The action of trial judge in sustaining motion to exclude plaintiff's evidence at close of plaintiff's case is presumed to be correct.
5. NEGLIGENCE.
In action for damage caused by fire which defendant allegedly set out on land and negligently allowed to burn plaintiff's hay, record did not show that trial court erred in sustaining defendant's motion, at close of plaintiff's evidence, to exclude plaintiff's evidence and in refusing to submit case to jury (Code 1930, section 3422).
APPEAL from the circuit court of Calhoun county.
W.J. Evans, of Calhoun City, and W.I. Stone, of Coffeeville, for appellant.
There is no question about it that the court having granted a peremptory instruction everything is taken to have been proved that is shown by the testimony or by reasonable inference therefrom.
Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Pough, 140 Miss. 479, 106 So. 81; St. Louis S.F.R. Co. v. Nixon Phillips, 141 Miss. 677, 105 So. 478; Gulf S.I.R. Co. v. Hales, 140 Miss. 829, 105 So. 458.
The statute 3422 gives us the right; we have proved that her hands, headed by her husband, left the fire out there carelessly and destroyed the plaintiff's hay. We cannot see any justification whatever for the peremptory instruction and, therefore, we ask for a reversal of the case and a new trial so that a jury may decide the proper jury question that we have propounded; that is, if it is denied because as it stands we were entitled to a peremptory instruction as our testimony is uncontradicted in the record.
Patterson Patterson, of Calhoun City, for appellee.
We respectfully submit that the only question presented for decision of this court is whether or not the testimony offered by the appellant, the plaintiff in the court below, was sufficient to go to the jury for decision by the jury on the question of whether or not the appellee went on the lands owned at the time by her, but occupied at the time by the appellant, by her agents and employees, and set out fire on said lands and negligently and carelessly allowed the fire to spread to the hay owned by the appellant located on said land. It is undisputed that there had been fire in the territory near where the hay was stacked for three or four days, that is to say, in the territory near where the hay was located, other than that upon which the hay was stacked and other than that upon which the witness, George Wortham, and other negroes were working.
It is conclusively shown by the witness, George Wortham, that he was not the agent or employee of appellee nor her husband, but that he was cutting wood for himself by permission of appellee's husband, C.W. Wade, and the appellant, McCain.
We respectfully submit that, taking the testimony as a whole, there is not sufficient proof in the record to show that any person who had been on the premises at any time near the time of the fire in question was acting as the agent of the appellee, or that appellee had anything whatever to do with those who were working on her land at the time, but if mistaken in this, the testimony certainly shows that the only person even remotely connected with anything that could have possibly caused the fire was the husband of appellee, to-wit, C.W. Wade, and the only act of said C.W. Wade that could possibly connect him with the burning of the hay, is the fact that it was shown that he "fired a old Beach Tree on the edge of the cotton patch about a week before the hay burned."
Even though the appellant had been permitted to prove by the witnesses offered the alleged statements of Mr. and Mrs. Wade on the trial of another and different case to the instant case, that C.W. Wade was the general agent of the appellee, this could not have changed the proof by the witnesses who testified that no act of C.W. Wade could have possibly caused the fire in question.
Appellant brought an action against appellee under section 3422, Code 1930, charging that appellee, through her agents and employees, set out fire on lands of which appellant was the lawful lessee in possession, and negligently and carelessly allowed the fire to burn the hay of appellant then cut and stacked on said land.
The burning is alleged to have occurred on Saturday afternoon, November 11, 1933. It is not shown when the declaration was filed, but the summons was issued on February 23, 1934. The case was not tried until September 27, 1937, more than three years after the institution of the action, and approximately four years after the injury complained of. Details of the facts are of essential importance in a case of this kind, as in most cases; and, naturally, such details in such a length of time would become obscure in the memory of the witnesses, as this record sufficiently discloses was the case here.
It is not shown why, within all this time, the case was not earlier tried, or otherwise disposed of. The presumption is that it was continued from term to time by consent, else it would have been dismissed under section 667, Code 1930. It is true that the demand involved only a little more than $200, but if an action is worth instituting, it is worth trying; and if either, it is worth trying promptly, for when tried it should, of course, be carefully and adequately presented. But there can be no adequacy of presentation when, because of an unreasonable lapse of time, the witnesses do not, and naturally cannot, adequately remember. Such a delayed trial in many, if not most, cases whatever the result, leaves at last a regretful doubt whether actual justice has been done — or, rather, produces doubt whether if more promptly and thereby the more adequately presented, the justice of the case might more clearly have appeared, for one side or the other.
At the close of plaintiff's evidence the court sustained a motion to exclude it, and thereupon gave judgment for the defendant. Appellant insists that there was enough in the evidence to require its submission to the jury, invoking the familiar rule that in excluding the evidence of a party litigant everything in that evidence, and every reasonable inference to be drawn therefrom, in favor of said party, must be taken as truthful proof in his behalf. But in this class of cases, as in other actions in tort, the plaintiff must show with fair or reasonable certainty or definiteness that the party charged is the party actually responsible for the wrong. It is not enough that this shall be left to conjecture or to inferences so loose as that it cannot be dependably told where conjecture ceases and cogent inference begins.
We have repeatedly read this record through and through, and from what we can see, all that the jury could have done would have been to make an unsafe guess as to whether the fire that burned the hay had its origin in one set out by defendant's husband and agent, or whether from fires set out by one Wortham or his coworkers not in the employ of defendant — so far as any real proof is concerned — or whether from other sources, it being shown that fires were at several points in that immediate vicinity. As we have already indicated, the evidence is obscure in cogency and in probative detail. And thus, had the jury made the guess that the fire had its origin in the one set out by defendant's husband, it would not have had the support of that substantial character of definite evidence which is necessary to maintain the affirmative of an issue, such as here involved, which, as we have said, is required to be proved with a reasonable degree of certainty.
The action of the trial judge is presumed to be correct, and we cannot say from this record that his judgment was clearly or manifestly wrong.
Affirmed.