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FOSTER v. WAYBRIGHT (05/21/51)

May 21, 1951

FOSTER, APPELLANT,
v.
WAYBRIGHT



Appeal, No. 87, March T., 1951, from order of Court of Common Pleas of Butler County, Sept. T., 1949, No. 116, in case of James L. Foster v. J. L. Waybright and Gust Rosner. Order affirmed.

COUNSEL

Lee C. McCandless, with him Painter & Painter, for appellant.

Willis A. MacDonald, with him J. H. Cochran and A. R. Cingolani, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 367 Pa. Page 616]

OPINION BY MR. JUSTICE BELL

This appeal involves the narrow question: Was there a palpable abuse of discretion by the trial court in granting a new trial?

Plaintiff brought an action of trespass against defendant Waybright for wrongfully, wilfully and maliciously cutting and removing timber from his land. Rosner, who authorized Waybright to cut the timber, was brought onto the record as an additional defendant. The jury returned a verdict of $6000. in favor of the plaintiff and against Rosner.

The court below in granting a new trial, said: "... the sole reason for granting the new trial was, that... the evidence on behalf of the plaintiff as to the value of the timber taken was not sufficient either in quantity or quality to justify the verdict of $6000. returned by the jury; and that had the jury believed the testimony of the defendant [Waybright], the verdict is then grossly excessive."

Plaintiff was the owner of a 143 acre farm which 35 years previously had been cut for timber. He had been engaged in the timber business for more than 45 years and was undoubtedly an expert both as to timber and its value. He testified that the timber in question was principally of white oak, with some red oak and wild cherry; the stand was very tall, straight and very thick

[ 367 Pa. Page 617]

    on the ground; the trees were generally of the same size and the stump measured 18 inches; approximately 80 acres of his timber land had been cut; and the value of the timber cut and removed was $50. per acre. He did not, however, state the number of trees cut and admitted that the growth of timber was not regular over his farm. A neighbor who is not an expert, testified that he was familiar with the plaintiff's timber from hunting over the land for deer and that in his opinion it was worth $50. an acre, though he made no grade or count of the timber on the land nor even how many acres had been cut. The court refused to hear a third witness for plaintiff on the ground that he was not qualified.

Defendant Rosner testified that plaintiff had authorized him to cut some trees (though the number and exact location was not specified) and that he had agreed to pay plaintiff a cent apiece for posts made from trees which defendant cut. Rosner authorized Waybright to cut certain timber on plaintiff's land and pay him 2› a post. Waybright cut some 17,000 posts and paid Rosner from September 10, 1948 to May 1949, $301.06 for these posts. Defendant further testified that timber was cut on 30 to 40 acres of plaintiff's land; and that out of this acreage only small trees were cut and some of the acreage was not worth cutting at all. Another witness for the defendant testified that only small trees from 6 to 7 inches at the bottom were cut on 30 to 40 acres of plaintiff's land; and that out of that acreage some acres had no timber growing on them at all. A jury found that Rosner was guilty of trespass and wilfully causing the removal of timber from plaintiff's lands, and assessed ...


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