Batson-McGehee Co. v. Smith
Mississippi Supreme Court
On suggestion of error. The court held, in affirming the case, that a plaintiff could sue in two counts, one for the statutory penalty, and one for actual damages, and on the trial of the case, dismiss the count for actual damages, and obtain an instruction from the court to the jury, instructing them to disregard the count for actual damages, and yet in the same instruction, further instruct the jury that, notwithstanding the count for actual damages had been dismissed by…
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On suggestion of error. The court held, in affirming the case, that a plaintiff could sue in two counts, one for the statutory penalty, and one for actual damages, and on the trial of the case, dismiss the count for actual damages, and obtain an instruction from the court to the jury, instructing them to disregard the count for actual damages, and yet in the same instruction, further instruct the jury that, notwithstanding the count for actual damages had been dismissed by the plaintiff, leaving only the count for statutory penalty, he still had the right to recover actual damages. We…
1Opinion of the CourtEthridge, J.
This cause was affirmed without an opinion on a former day of this term (95 So. 647), and a suggestion of error has been filed insisting that error was committed in such affirmance. There were two counts in the declaration, one for the statutory penalty under chapter 67, Hemingway’s Code, and the other for the actual value of the trees cut. On motion of the defendant the court required the plaintiff to elect upon which count he would proceed, and the plaintiff elected to proceed upon the count for the statutory penalty.
At the conclusion of the evidence, the court instructed the jury to…
2Cases cited4 opinions
- Mhoon v. GreenfieldMississippi Supreme Court · 1876
- Therrell v. EllisMississippi Supreme Court · 1903
- Roell v. ShieldsMississippi Supreme Court · 1920
- Ladnier v. Ingram Day Lumber Co.Mississippi Supreme Court · 1920
3Cited by1 opinion
- Cohn v. Lovell Lumber Co.Mississippi Supreme Court · 1924