Willett v. Kinney , 54 Or. 594 ( 1909 )

Opinion by

Mr. Chief Justice Moore.

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 lien was filed on or before April 21, 1908, the allegation does not show that the notice was filed within the 30 days prescribed (Section 5683, B. & C. Comp.), nor is it averred that the acts complained of were done “without the express consent of the person entitled to such lien,” as required by the statute (Section 5692, B. & C. Comp.), and hence the demurrer should have been sustained.

1. It will be remembered that the complaint alleges that the lien was duly foreclosed in a suit instituted for that purpose from which averment, in an independent action, it will be inferred that the validity of the lien was thereby established (Section 87, B. & C. Comp.), and hence it was unnecessary to set forth in the complaint the facts which the law inferred. Bliss, Code Plead. § 176; Rutenic v. Hamakar, 40 Or. 444, 450 (67 Pac. 196).

2. It must be admitted that the complaint should have been framed in conformity with the language of the statute, and averred that the logs and piles were removed by the defendants “without the express consent of the person entitled to such lien.” Section 5692, B. & C. Comp. The allegation, however, in the complaint that the defendants, “fraudulently conniving, conspiring and confederating * * to cheat, wrong and defraud this plaintiff out of his labor and lien security, did injure, impair, destroy, and remove all of said saw logs and piling, and rendered the same impossible of identification, and appropriated the same to their own use,” etc., negatives such consent, and tenders an issue on that subject. No error was committed in overruling the demurrer.

3. It is maintained that an error was committed in refusing to grant a judgment of nonsuit. The bill of exceptions does not purport to contain all the evidence given at the trial, but only the substance thereof. The rule is settled in this State that the action of a trial court in denying a motion for a judgment of nonsuit will not be reviewed on appeal,' unless it affirmatively appears from the bill of exceptions that all the testimony introduced at the time the motion was interposed has been brought up for examination, and, when this is not done, it will be presumed in favor of the judgment of the lower court that there was sufficient evidence to warrant a submission. Schaefer v. Stein, 29 Or. 147 (45 Pac. 301) ; Thomas v. Bowen, 29 Or. 258 (45 Pac. 768) ; First Nat. Bank v. Fire Association, 33 Or. 172, 193 (50 Pac. 568: 53 Pac. 8) ; Carney v. Duniway, 35 Or. 131, 135 (57 Pac. 192: 58 Pac. 105).

4. It is insisted that errors were committed in refusing to charge the jury as requested, to wit: (1) “It is the duty of the plaintiff to present such evidence to the jury as will make clear his right to recover.” (2) “If the evidence of the plaintiff leaves the jury in doubt as to what the amount of the verdict should be, then you should find for the defendants.” (3) “If you should not be able to determine from the evidence beyond a reasonable doubt as to what the amount of the verdict should be, then you should find for the defendants.”' The burden of proof was imposed on the plaintiff, making it incumbent upon him to introduce such testimony as would reasonably show his right of recovery. If the evidence produced by the respective parties does not preponderate in favor of the plaintiff, the jury should find for the defendants.

5. In the trial of civil actions, though the verdict is necessarily based on the weight of the evidence, the plaintiff, unless his cause of action is admitted by the answer, is required to introduce testimony which reasonably tends to show a right to recover his demand or some part thereof. Absolute certainty is rarely possible when the determination of an issue rests upon testimony, and, this being so, the omission of the word “reasonably” as qualifying the phrase “will make clear,” as used in the first request, makes the demand for that part of the charge objectionable, and no error was committed in refusing to give it.

“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.

6. An exception having been taken to the following part of the court’s charge, it is argued that an error was committed in instructing the jury as follows:

“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.