Opinion
No. 35811.
May 28, 1945.
1. PLEADING. Trespass.
Owners could not recover both actual damages and statutory penalties for cutting ornamental trees reserved in their deed of timber, hence lower court erred in overruling defendant's motion to require owners to elect whether to seek actual damages or statutory penalty (Code 1942, sec. 1076).
2. APPEAL AND ERROR.
The error in overruling defendant's motion to require plaintiffs, suing under section 1076, to elect whether they would seek to recover actual damages or statutory penalty for cutting ornamental trees on plaintiff's land which had been reserved in timber deed, was cured when plaintiff amended declaration and proceeded under section 1075, permitting recovery of both actual damages and penalties (Code 1942, secs. 1075, 1076, 1511).
3. TRIAL.
A request for view should not be granted unless it is reasonably certain that it will be of essential aid to jury in reaching correct verdict, and not merely of some aid, and that it is impracticable and inefficient to present material elements to jury by photographs, diagrams, or measurements (Code 1942, sec. 1075).
4. TRIAL.
In action for actual damages and statutory penalty for cutting trees reserved in deed of timber, trial court's refusal to permit jury to view premises was not abuse of discretion, where photographs, diagrams, and testimony were sufficient to enable jury to understand respective contentions of parties, though photographs could not disclose number of trees cut and though both parties joined in request for view.
5. TRESPASS.
Conflicting evidence as to location of area referred to in deed of timber, reserving to owners "all trees around the old home site in between present fences which lie in the shape of a V," was sufficient to sustain finding that reserved area contended for by plaintiff owners in their action for actual damages and statutory penalty for cutting such trees was the correct one (Code 1942, sec. 1075).
6. TRESPASS.
In action to recover actual damages and statutory penalty for cutting trees reserved in timber deed, evidence that parties agreed that grantor should mark trees which were not to be cut in designated area and that she did so mark the trees and that most of them were cut by grantee's employees over grantor's protest and according to grantee's instructions, sustained finding that cutting was willfully done without proper precaution to prevent trespass (Code 1942, sec. 1075).
7. EVIDENCE.
In action to recover actual damages and statutory penalty for cutting trees reserved in timber deed, grantee's witness was entitled to testify to facts as to whether grantee had complied with instructions of grantors as to timber reserved so as to permit jury to determine whether there had been compliance with terms of reservation (Code 1942, sec. 1075).
8. APPEAL AND ERROR.
Any error in sustaining objection to testimony of grantee's witness as to whether grantee had complied with grantors' instructions as to cutting of timber reserved in timber deed, did not require reversal in view of other testimony of such witness (Code 1942, sec. 1075).
Appeal from the circuit court of Lafayette county, HON. T.H. McELROY, Judge.
J.W.T. Falkner, of Oxford, for appellant.
The declaration filed in the case by plaintiffs, appellees here, charges the cutting of ornamental trees of four inches or more in diameter as described in Section 1076 of the Code of 1942 and asked judgment of defendant, appellant here, for actual value of all trees cut and the statutory penalty of $40 for each tree so cut. Section 1076 contains no saving clause so as to authorize the recovery of both actual damages and the penalty provided in the same suit, and when no authority for such recovery is given by the statute authorizing the penalty, an owner may recover either the statutory penalty or actual value of trees but not both.
Roell et al. v. Shields, 124 Miss. 226, 86 So. 763.
The motion to require plaintiffs to elect whether they should attempt to recover statutory penalty or actual damages should have been sustained by the court, and it was an error for the court to permit the plaintiff to amend his declaration by eliminating charges of the cutting of ornamental trees and make amendments of the declaration so as to contain charges under Section 1075 charging the cutting of different trees altogether from those described in the original declaration as filed under Section 1076.
In the final analysis the testimony in this case was drawn down to a question of the limitations set forth in the reservation of the timber deed prohibiting the cutting of timber within the V fence at the house site, and from the testimony given by the plaintiff Mrs. C.D. Williams, the defendant D.B. Floyd and the witness Gayle Hewlett it was conclusively shown that to reach the ends of justice in the case it was necessary that the court and jury have a view or inspection of the property, the place at which the material facts occurred in connection with the evidence in this case. Because of the conflict of testimony and the differences of opinion of the witnesses presented it was distinctly impractible to present material evidence to the jury by photographs, diagrams and measurements, and the motion of defendant, appellant here, approved and agreed upon by the plaintiffs, appellees here, should have been sustained and the jury permitted to view the premises.
National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 95 A.L.R. 1500.
The fourth assignment of error charges that the court erred in sustaining objections of the testimony of the witness Hewlett as to whether or not defendant had complied with instructions of plaintiff as to timber reserved. The witness Hewlett was present during all of the negotiations and the pointing out of timber to be reserved between the seller Mrs. C.D. Williams and the purchaser D.B. Floyd, and on the witness stand he was asked the question, after having testified that he had recently viewed the premises, whether or not Floyd had complied with or carried out the reservation agreed upon by the parties at the time the timber was inspected and purchased. This testimony was competent because it attempted to show a verbal consent for the cutting of the timber charged to have been cut in the declaration, and penalty for the cutting of timber cannot be recovered when verbal consent is obtained.
Fleming v. Dunigan Cooperage Co., 144 Miss. 769, 109 So. 851; Bollinger-Franklin Lumber Co. v. Tullos, 124 Miss. 855, 87 So. 486.
The statutory penalty or punitive damages for cutting trees cannot be recovered when done under an honest mistake and reasonable belief as to ownership of land or right to cut timber.
Anderson-Tully Co. et al. v. Campbell et al., 193 Miss. 790, 10 So.2d 445.
None of the instructions given by the court for appellees attempted to limit the verdict to the pleadings in the case and since the verdict and judgment for statutory penalty was in excess of the amount claimed in the pleadings the case must be reversed.
Houston et al. v. Smythe, 66 Miss. 118, 5 So. 520; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; MacLeod v. Womack, 95 Miss. 439, 50 So. 66; Abrams v. Allen, 109 Miss. 688, 68 So. 927; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 743. James Stone Sons, of Oxford, for appellees.
As the suit was first brough, there is no doubt that this motion of appellant was well taken. However, by the amendment of the declaration appellees brought this suit under cover of Section 1075 of the Code of 1942.
The court did not err in permitting appellees to amend their declaration. Such an amendment is permitted under Section 1511 of the Code of 1942.
Dyer v. Britton, 53 Miss. 270, 279; Merchants' and Farmers' Bank v. Smith, 107 Miss. 105, 64 So. 970; Rodgers v. Kline, 56 Miss. 808, 819, 820, 31 Am. Rep. 389; McCleary v. Anthony, 54 Miss. 708, 710; Yazoo M.V.R. Co. v. Schraag, 84 Miss. 125, 148-153, 36 So. 193; Code of 1942, Sec. 1544.
The action of the court in refusing the motion of appellant to permit the jury to view the premises was not error. This was a matter entirely within the proper discretion of the trial court.
National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91, 95 A.L.R. 1500.
The trial court did not err in sustaining the objections of appellees to the testimony of the witness Hewlett as to whether or not appellant had complied with the instructions of appellees as to the timber reserved. We submit that the Court will see by a mere reference to the record, first, that this question was purely a conclusion, and, second, that the witness actually answered the question in substance. Furthermore, the record shows that the witness Hewlett was not present at all times during the conversation between appellant and appellee Mrs. Williams. So we submit that this action of the court could not have been error.
All instructions must be considered together and if it appears as a whole that the law was fairly set forth in the instructions the verdict will be upheld.
Yazoo M.V.R. Co. v. Williams, 87 Miss. 344, 39 So. 489; Mississippi Cent. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Yazoo M.V.R. Co. v. Kelly, 98 Miss. 367, 53 So. 779.
If all the instructions taken together constitute the law correctly such error is harmless and will not justify a reversal.
City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590.
The jury had the right to believe the testimony for appellees combined with the undisputed facts and if the jury did believe such testimony then the cutting of the trees was without the consent of appellees, or the consent of either of them, and such cutting was willful and without proper precaution to prevent a trespass.
Clay v. Postal Telegraph Co., 70 Miss. 406, 409, 410, 11 So. 658; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523.
Argued orally by J.W.T. Falkner, for appellant, and by Phil Stone, for appellees.
This suit was brought by the appellees, Mrs. C.D. Williams and her husband, against the appellant D.B. Floyd, for both actual damages and the statutory penalty for cutting some "ornamental" trees of certain dimensions on their land which had been reserved in their deed to the appellant of the timber on 420 acres. Upon motion being made to require the plaintiffs to elect as to whether they would seek to recover the actual damages or the statutory penalty, and which motion was well taken in view of the fact that the declaration was predicated upon Section 1076, Code of 1942, which does not confer upon the owner the right to recover both actual damages and the penalty of $40 for an ornamental tree, Roell v. Shields, 124 Miss. 226, 86 So. 763, the plaintiffs obtained leave to amend their declaration so as to seek a recovery of the actual damages claimed and a penalty of $15 per tree, as provided for under Section 1075, Code of 1942, and to which amendment the defendant objected. The suit proceeded to trial and judgment upon the declaration, as amended, with the result that there was a verdict and judgment in favor of the plaintiffs in the sum of $32.41 as actual damages, and $585 as statutory penalties, the declaration having alleged the wilful cutting of 39 trees without the consent of the owners.
Upon this appeal, the appellant assigns several grounds of alleged error on the part of the trial court: First, it is complained that the court erred in overruling the defendant's motion to require the plaintiffs to elect whether they should attempt to recover actual damages or the statutory penalties. While this motion of the defendant should have been sustained instead of being overruled by the trial court, the error was cured when the plaintiffs amended their declaration under the authority of Section 1511, Code of 1942, and annotated cases thereunder, and proceeded under the statute permitting the recovery of both such damages in a proper case.
Second, it is claimed that the trial court abused its discretion in not permitting the jury to visit and view the premises where the trees had been cut and removed from the land. Responding to this contention, we call attention to the holding in the case of National Box Company v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 93, 95 A.L.R. 1500, wherein it was said: "And because a view when taken very nearly divests the appellate court of its power to review the case on the evidence, a request for a view should never be granted unless it appears reasonably certain that it will be of essential aid, not merely of some aid, to the jury in reaching a correct verdict, and that it is distinctly impracticable and inefficient to present the material elements to the jury by photographs, diagrams, maps, measurements, and the like." To the same effect is Great A. P. Tea Co. v. Davis, 177 Miss. 562, 171 So. 550.
In the instant case, each of the litigants introduced diagrams to indicate the area on which the trees had been reserved under the deed, the one offered by the plaintiff showing such area to be in a fenced V-shape about 350 or 400 yards wide at the top and bordered on an east and west road in front of the old home and about 150 or 200 feet wide at the base in the rear thereof, around an old house site where they intended to rebuild; and the one offered by the defendant showed such area to be in a V-shape located wholly out in front of the old house site; and as to the respective areas thus indicated, the testimony of the witnesses was in sharp conflict. The plaintiffs also introduced photographs showing the location of the old home site and the trees cut in close proximity thereto. And, while these photographs could not accurately disclose the number of trees cut within the area complained of, we are not justified in holding that the trial court abused its discretion in denying a view of the premises by the jury, even though the plaintiffs joined in the request therefor, since the number of the trees cut must necessarily rest upon an actual count of them, and we are of the opinion that the diagrams and the testimony were sufficient to enable the jury to understand the respective contentions of the parties.
The particular reservation of the deed here involved applies to "all trees around the old home site in between present fences which lie in the shape of a V." The trees sued for were cut "around" the old home site, whereas those on the area which the defendant contends was reserved, and which were not cut, are on an area in a V-shape out in front of the home site, as aforesaid, and some little distance removed therefrom. Under the conflicting evidence, we are of the opinion that the jury was warranted in finding that the reserved area contended for by the plaintiffs was the correct one, even though the jury may have been justified in adopting the contrary view.
The evidence further disclosed on behalf of the plaintiffs that the area contended for by them was pointed out to the grantee before the deed was drawn, and that Mrs. Williams delivered to him at the attorney's office when the deed was drawn a diagram similar to the one introduced by the plaintiffs in evidence, disclosed the location of such reserved area, and the defendant admitted as a witness on the trial that every tree that was cut was cut under his instructions. In his cross-examination the following questions and answers appear in the record:
"Q. Now these trees that were cut up there around the old homesite, you instructed your employees to cut those? A. Yes sir. Not a tree cut there that I did not tell them to cut.
"Q. Those trees cut on that homesite hill were cut at your order? A. Every tree cut there was cut at my instructions."
It was also shown that at the time Mrs. Williams delivered to the grantee the diagram at the office of the attorney who drew the deed, she was to encircle with a string or otherwise mark the trees which were not to be cut; that she did mark 50 of such trees, and that 41 of them were cut by the employees of the defendant over her protest, and according to the instructions of the defendant. The jury assessed the statutory penalty for 39 of such trees, the number sued for in the declaration, and we are not justified in holding that the cutting was not wilfully done or without proper precaution to prevent trespass.
Third, it is complained that the trial court was in error in sustaining an objection to the testimony of the defendant's witness Hewlett as to whether or not the defendant "had complied with the instructions of the plaintiffs as to the timber reserved." The witness was entitled to state the facts so as to let the jury determine whether there had been a compliance with the terms of the reservation. But, be that as it may, the witness was thereupon asked and permitted to answer the same question in this form: "Was any of the timber as pointed out as being reserved by Mrs. Williams cut when you went back there?", and he answered that there had not been, and he had gone back after all of the cutting was over.
Fourth, the granting and refusal of certain instructions were also complained of, but we are of the opinion that the instructions as a whole fairly, fully and correctly presented the issues to the jury and that no reversible error was committed upon the trial, and that the judgment appealed from should therefore be affirmed.
Affirmed.