Deitz v. Lensinger

91 S.W. 755, 77 Ark. 274, 1905 Ark. LEXIS 206

Opinions

Wood, J.,

(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.