Opinion
No. 41900.
May 29, 1961.
1. Trespass — statutory penalty — damages — excessive — remittitur ordered.
Verdict of $618 for cutting and removing 24 trees for which statutory penalty was $15 per tree and one tree for which penalty was $5 and for damage to a road over which logs were hauled of about $100, was excessive. Sec. 1075, Code 1942.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Warren County; BEN GUIDER, J.
Dent, Ward, Martin Terry, Vicksburg, for appellant.
I. Appellees not entitled to recover statutory penalty. Ginther v. Long, 227 Miss. 885, 87 So.2d 286; Hudson v. Landers, 215 Miss. 447, 61 So.2d 312; Kelley v. Welborn, 217 Miss. 18, 33 So.2d 413; Lochridge v. Hannon (Miss.), 112 So.2d 234; Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755; Robinson v. McShane, 163 Miss. 626, 140 So. 725; Strawbridge v. Day, 232 Miss. 42, 98 So.2d 122; Thrash v. Ferguson, 216 Miss. 367, 62 So.2d 364; Sec. 1075, Code 1942; 31 C.J.S., Sec. 126 p. 746.
II. Judgment not supported by the proof.
III. Plaintiff's instructions permitted the jury to speculate and to compound the damages for the mere trespass in addition to the actual damages.
IV. The Court erred in granting an abstract instruction not related to the evidence. Byram v. Snowden, 224 Miss. 74, 79 So.2d 541; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Johns-Manville Products Corp. v. McClure, 209 Miss. 240, 46 So.2d 538.
Prewitt Bullard, Vicksburg, for appellees.
I. Plaintiff brought suit in three counts, for the statutory penalty for cutting 25 named specie of trees, for the actual value thereof, and damages for trespass on land. The amount of the verdict is not excessive for the trespass on the land alone. This Court will not substitute its judgment for that of the jury in awarding damages. Chapman v. Powers, 150 Miss. 687, 116 So. 609; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Harper v. Wilson, 163 Miss. 199, 140 So. 693; Hasie v. Alabama V.R. Co., 79 Miss. 581, 30 So. 199; Hill v. United Timber Lumber Co. (Miss.), 68 So.2d 420; Illinois Cent. R. Co. v. Harrison, 224 Miss. 331, 80 So.2d 23; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342; J.C. Penney Co. v. Evans, 112 Miss. 900, 160 So. 779; Johnson v. Richardson, 239 Miss. 849, 108 So.2d 194; Lynch v. American Slicing Mach. Co., 202 Miss. 515, 32 So.2d 546; Rasberry v. Calhoun County, 230 Miss. 858, 94 So.2d 612; Sec. 1075, Code 1942.
II. When the instructions construed together correctly set forth the law, then the jury's verdict must stand if supported by the evidence. Scoggins v. Vicksburg Hospital, 229 Miss. 770, 91 So.2d 837.
The appellees T.J. Redditt and wife sued the appellant Vicksburg Hardwood Company to recover the statutory penalty for cutting and removing from appellees' land certain trees and for the actual value thereof, and also for damages in connection with other alleged trespasses.
The statutory penalty of $15 per tree is imposed by Section 1075, Code of 1942, as to trees of a particular species. According to the testimony on behalf of the complainants, who are the appellees here, the defendant Vicksburg Hardwood Company cut twenty-five trees off the land of the appellees without their consent, and twenty-four of which trees were of the species enumerated in the statute, the other one being a sycamore tree, for which the statute requires that the defendant shall pay the sum of $5. In other words, the suit under one count of the declaration is for $365 under this statute. The plaintiffs' proof tended to show that the actual value of these trees "would be over a hundred dollars worth"; and that it "would cost right at a hundred dollars" to compensate the complainants for the damages done to a road on his land over which logs were hauled. There is no proof in the record to sustain a judgment for more than $565. Nevertheless, the jury returned a verdict for $618. Upon the motion for a new trial the court should have reduced the judgment to the sum of $565.
(Hn 1) There was a sharp conflict in the testimony as to whether more than six trees were cut and removed by the defendant from the land, and as to whether or not an agreement had been made whereby the defendant was to pay only the actual value for the timber. But we think that an issue was presented for the decision of the jury as to whether the defendant should pay the statutory penalty and the actual value for the twenty-five trees testified to by the complainants.
If the appellees shall within ten days from this date enter a remittitur reducing the judgment from $618 to $565 the judgment appealed from will be affirmed, otherwise the cause will be reversed and remanded for a new trial.
Affirmed with remittitur.
Arrington, Ethridge, Rodgers, and Jones, JJ., concur.