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D.L. Fair Lumber Co. v. Weems

Supreme Court of Mississippi, In Banc
Feb 14, 1944
196 Miss. 201 (Miss. 1944)


In D.L. Fair Lumber Co. v. Weems, 196 Miss. 201 (1944), 16 So.2d 770, 771, a lumber company owned timber that was located on Weems's land. The lumber company planned to cut and remove the timber and obtained permission from Weems to do so.

Summary of this case from Alexander v. Brown


No. 35358.

February 14, 1944. ON SUGGESTION OF ERROR.

1. LANDLORD AND TENANT. Logs and logging.

Where company owning timber on land leased by owners as a pasture, employed a cutter to cut the timber, both cutter and company were under duty to the owners and the lessee, to use reasonable care not to unnecessarily injure the improvements on the land, including fences.


Company owning timber on land leased by owners as a pasture, could not delegate its responsibility to use reasonable care not to unnecessarily injure improvements on the land, including the fences, to a third person in such manner as to be relieved of liability.


In action for damages for loss of cattle through a fence damaged in cutting timber, jurors could use their own judgment and common experience in determining whether timber adjacent to a fence may be cut in such manner as to be felled away from the fence, except where trees are leaning toward the fence.


In action by lessee of pasture land for damages for loss of cattle through a fence damaged by grantee of timber in cutting timber, lessee was entitled to damages for loss of cattle, expense of corraling cattle and renting a temporary enclosure, loss of subrentals on the pasture, and the expense incurred and time lost by lessee in going to and from the premises in order to reduce his damages by preventing escape of more cattle.


The doctrine of "respondeat superior" does not apply only to actual or compensatory damages, and an employer to be held liable for punitive damages need not have ratified the gross and willful breach of duty of an employee.

6. LANDLORD AND TENANT. Master and servant.

Where company, as grantee of timber on land leased by owners as a pasture, and employing a cutter to cut the timber, knew that the cutter was negligently and unnecessarily damaging the fences and allowing lessee's cattle to escape, and did nothing, company was liable to the lessee for punitive damages for gross and willful negligence of cutter, as well as for actual damages, regardless whether cutter was an independent contractor or company's employee, and regardless whether duty not to damage the fence arose by contract.


Punitive damages may be recovered for breach of contract where breach is attended by such gross negligence or willful wrong as to amount to a tort.


The breaking down and destruction of another's fence is a "tort," regardless whether the duty not to destroy the fence arose under contract, and when destroyed under circumstances of such gross and persistent wrong as to manifest an indifference to the consequences and the rights of others, it is a tort which will justify punitive damages for the loss of escaping cattle.

APPEAL from the circuit court of Scott county, HON. PERCY M. LEE, Judge.

E.M. Livingston, of Louisville, and Nichols Huff, of Forest, for appellants.

We submit that Willis was not the servant of appellants at the time of the alleged fence damage, but was an independent contractor; that no damage whatsoever was done to the fence or fences or to the property which in any way interfered with Mr. Weems' rights by the agents, servants and employees of the appellants. It follows, therefore, that whatever damage was done, if any, was done by Willis and not the appellants, and the court erred in refusing the peremptory instruction requested by appellants at the conclusion of the evidence.

New Orleans, Baton Rouge, Vicksburg Memphis R. Co. v. Norwood, 62 Miss. 565; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; Callahan Construction Co. et al. v. Rayburn, 110 Miss. 107, 69 So. 669; Crescent Baking Co. v. Denton et al., 147 Miss. 639, 112 So. 21; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Cook v. Wright, 177 Miss. 644, 171 So. 686; Crosby Lumber Manufacturing Co. v. Durham, 181 Miss. 559, 179 So. 285; Texas Co. v. Wheeless et al., 185 Miss. 799, 187 So. 880; Rogers v. Florence R. Co. (S.C.), 9 S.E. 1059; McBride v. Jerry Madden Shingle Co. (Mich.), 138 N.W. 1077; Gay v. Roanoke, etc., Lumber Co. et al. (N.C.), 62 S.E. 436; Knowlton et al. v. Hoit (N.H.), 30 A. 346; Scales v. First State Bank (Ore.), 172 P. 499; Young v. Fusburg Lumber Co. (N.C.), 60 S.E. 654; Schroer v. Brooks (Mo.), 224 S.W. 53; D.E. Hewitt Lumber Co. et al. v. Mills (Ky.), 236 S.W. 949.

The lower court apparently was of the opinion that the rule as to an independent contractor applies in personal injury cases, but does not apply where property rights are involved. We are unable to see the reason for any such rule. If there should be a distinction between the two we think the employer should be held to a much more strict accountability for personal injuries and those cases where human life is involved than should be required of him where property is involved.

We submit that there is no evidence in the record to warrant giving the punitive damage instruction. At most, this was only a trespass where a little damage was done to a fence. It would have been impossible for Willis or any other person to have cut and removed this timber without doing some damage to the fence. Mr. Willis testified that he agreed to keep the fence up as best he could and did make such repairs as he could make, and we submit that no one should be penalized by being required to pay punitive damages. Punitive or exemplary damage is allowed in cases of malice, willfulness, insult, fraud, oppressions, gross negligence and the like.

Yazoo M.V.R. Co. v. Hardie, 100 Miss. 132, 55 So. 967.

To justify the infliction of exemplary damages the act must be done wrongfully and must be the intentional doing of a wrongful act without excuse, or the doing of such wrongful act under such circumstances that the law will imply the evil intent.

Illinois Cent. R. Co. v. Dodds, 97 Miss. 865, 53 So. 409; Illinois Cent. R. Co. v. Owens (Miss.), 95 So. 833; Illinois Cent. R. Co. v. Ramsay, 157 Miss. 83, 127 So. 725; Yazoo M.V.R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; Bounds v. Watts, 159 Miss. 307, 131 So. 804; McDonald v. Moore, 159 Miss. 326, 131 So. 824.

We submit that there is no substantial evidence to support the verdict of the jury, certainly none to support a verdict for $400 actual damage and $700 punitive damage, and the court should have sustained the motion for a new trial, and its failure to do so was error.

Where the trial judge is of the opinion that the verdict is against the overwhelming weight, or clearly against great preponderance of the evidence, a new trial should be allowed.

Mobile Ohio R. Co. et al. v. Johnson, 165 Miss. 397, 141 So. 581; Fore v. Illinois Cent. R. Co., 172 Miss. 451, 160 So. 903.

O.B. Triplett, Jr., of Forest, for appellee.

Appellants, by their timber deed, owed a positive duty to Mrs. Alexander and Mrs. Hunter, as landowners, not to do unnecessary damage to the land and fences in removing the timber purchased.

Rice v. W.L. Robinson Lumber Co., 110 Miss. 607, 70 So. 817; Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417; Lewis v. Butters Lumber Co., 199 N.C. 718, 155 S.E. 726; 38 C.J. 175-176, Secs. 57-58.

This duty which appellants, as timber owners, owed Mrs. Alexander and Mrs. Hunter, as landowners, also became due to appellee, as the lessee, because of his privity in estate with the landowners.

H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208, 85 So. 193, 195; 36 C.J. 108-109, Sec. 749.

One on whom the law imposes a positive duty to the public or an individual cannot escape the responsibility of seeing that duty performed by delegating it to an independent contractor.

H. Weston Lumber Co. v. Hibbens, 182 Miss. 669, 182 So. 115; Guiguere v. Tobin Mfg. Co., Rap. Jud. Quebec, 53 C.S. 193; Wilber v. Follansbee, 97 Wis. 577, 72 N.W. 741, 73 N.W. 559; Republic Iron Steel Co. v. Barter, 218 Ala. 369, 118 So. 749; Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23; Alabama Great Southern R. Co. v. Killian, 17 Ala. App. 124, 82 So. 572; 39 C.J. 1336, Sec. 1546; 29 A.L.R. 737; A.L.I., Agency, Secs. 214, 251.

Where the work is dangerous unless precautions are taken, liability cannot be evaded by employing an independent contractor to do it.

Alexis v. Pittinger, 119 Wn. 626, 206 P. 370, 29 A.L.R. 733; Covington Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 215, 55 N.E. 618, 76 Am. St. Rep. 375, 7 Am. Neg. Rep. 154; 39 C.J. 1331, Sec. 1540; 23 A.L.R. 1016.

One who removes or destroys the fence of another is liable to respond in damages for any loss which is the natural or proximate consequence of his act.

Conklin v. Newman, 278 Ill. 30, 115 N.E. 849; Woodcock v. Calais, 68 Me. 244; Roby v. Reed, 39 N.H. 461; Gulf, etc., R. Co. v. McMurrough, 41 Tex. Civ. App. 216, 91 S.W. 320.

Such liability extends not only to injuries which are directly and immediately caused by his act but also to such consequential injuries as according to the common experience of men are likely to result from such act.

17 C.J. 750, Sec. 81.

A person injured by the tort of another is entitled to recover damages from him for all harm, past, present and prospective, legally caused by the tort.

Crowell v. New Orleans N.E.R. Co., 61 Miss. 631; Goldschmid v. New York, 14 App. Div. 135, 43 N.Y.S. 447; Baumann v. New York, 227 N.Y. 25, 124 N.E. 141; Reisert v. New York, 174 N.Y. 196, 66 N.E. 731; Code of 1930, Sec. 3421; Restatement, Torts, Sec. 910, p. 559; Restatement Torts, Sec. 929, Comment on Clause (c), p. 664; 17 C.J. 698, Sec. 123.

The damages inflicted were not only unnecessary but were wanton and willful and the allowance of punitive damages was not error.

Neal v. Newburger Co., 154 Miss. 691, 123 So. 861, 863; Hood v. Moffett, 109 Miss. 757, 69 So. 664; Donovan v. Sallee, 19 Mo. App. 593; Milwaukee, etc., Ry. Co. v. Arms, 91 U.S. 489, 23 L.Ed. 374; 17 C.J. 987, Sec. 284.

E.M. Livingston, of Louisville, and Nichols Huff, of Forest, for appellants, in response to inquiry by the court.

The sole question here involved is that of privity, in other words, is there such relationship existing between Mrs. Alexander and Mrs. Hunter as lessors and Weems as lessee that would enable Weems to recover for damages to the fence under the facts of this case, if Mrs. Alexander and Mrs. Hunter had such right, or is his right to sue appellants fixed by the lease contract?

The contract or timber deed between Mrs. Alexander and Mrs. Hunter, as owners of the land, and the appellants, as purchasers of the timber, contains no stipulation whatsoever as to fence damage. Neither does the contract leasing the land to Weems contain any such provision, nor does the contract with appellee give him any right whatsoever to bring a suit against the appellants for damages to the fence. Appellee had full knowledge, or at least constructive knowledge, of the existence of the timber deed to appellants when he executed the lease with Mrs. Alexander and Mrs. Hunter. As a reasonable man appellee should have known that there was likely to be damage to the fence, and if he wanted to be protected against such damage caused, or likely to be caused by cutting and felling the trees on the land, he should have inserted in his lease contract the right to bring a suit against the appellants for such damage. In the absence of a provision in appellee's lease and a conveyance or assignment therein of the right to sue for damages appellee has no legal right to maintain this suit. He acquired only such rights as were conveyed to him in the written lease.

H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208, 85 So. 193; Lipscomb v. Postell, 38 Miss. 476; Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880; Hartford Accident Indemnity Co. v. Hewes et al., 190 Miss. 225, 199 So. 93; Mayor and Board of Aldermen of City of Brookhaven v. Baggett, 61 Miss. 383; Pasadena v. California-Michigan Land Water Co., 17 Cal.2d 576, 133 A.L.R. 1186; Atkins v. Bordman, 2 Metc. (Mass.) 457, 37 Am. Dec. 100; Winslow v. Vallejo, 148 Cal. 723, 84 P. 191, 113 A.S.R. 349; Schwer v. Martin, 97 S.W. 12; Breckenridge v. Ormsby, 1 J.J. Marsh (Ky.), 236, 250, 19 Am. Dec. 71; 1 A.L.I., Restatement of the Law on Contracts, p. 176, Sec. 147; Rawle on Covenants for Title, 468 et seq. and notes; 19 C.J. 873, Sec. 16; 19 C.J. 939, Sec. 145; 50 C.J. 403, 406, the word Privity; 9 R.C.L. 735, Sec. 2; 9 R.C.L. 744, Sec. 12; 9 R.C.L. 745, Sec. 14; 9 R.C.L. 763, Sec. 27; 9 R.C.L. 785, Note 10; 9 R.C.L. 785, Sec. 43.

O.B. Triplett, Jr., of Forest, for appellee, in response to inquiry by the court.

The facts in this case can thus be reduced: Mrs. Alexander owned Blackacre in fee simple. She conveyed the timber to Fair with an easement and privilege of entering, cutting and removing the timber within three years. She thereafter conveyed an estate for years to Weems, who went into full possession on January 18, 1942. Afterwards, Fair contracted with Willis "in the spring" to cut and remove the timber and Willis wantonly destroyed the fences on the land in exercising the easement granted to Fair. What was Fair's liability to Weems?

The conveyance of the timber vested in Fair a fee simple title to the timber on the land therein described, subject to a possibility of reverter in Mrs. Alexander in the event of its non-removal within three years.

Smith v. Salmen Brick Lumber Co., 151 Miss. 329, 118 So. 179.

The conveyance also granted to Fair an easement appurtenant to the timber estate purchased, as distinguished from an easement in gross. It was an easement appurtenant because (a) it was created to benefit the possessor of the timber estate; and (b) it actually did benefit the possessor of the timber estate in his physical use of the timber.

Restatement Property (Group No. 2 — Proposed Final Draft), pp. 17-18.

Being incidental to the timber estate acquired by Fair, it partook of the quality of such estate and was therefore real property.

Restatement, Property, Proposed Draft, p. 19.

The timber estate became the "dominant tenement" and the estate remaining in Mrs. Alexander was the "servient tenement."

Restatement, Property, Proposed Draft, pp. 21-22.

Being a pure easement it could not be transferred except as an appurtenance to the timber estate. Therefore, Willis could not have acquired the easement unless Fair had conveyed him the timber itself. Appellants' contention to the contrary is wholly unfounded.

Baker v. Kenney, 145 Iowa 638, 643, 124 N.W. 901, 139 Am. St. Rep. 456; 19 C.J. 938, Sec. 144.

Except as prevented by the terms of the transfer, or by the manner or the terms of the creation of the easement appurtenant thereto, one who succeeds to the possession of the dominant tenement thereby succeeds to the privileges of the use of the servient tenement authorized by the easement.

McIntyre v. Harvey, 158 Miss. 16, 128 So. 572; Lanier v. Booth, 50 Miss. 410; Restatement, Property, Proposed Draft, p. 114.

If, therefore, Willis had purchased a possessory estate in the timber his excessive user of the easement would have made him liable and him only. But so long as Fair owned the timber, the use of the easement was his privilege only and its misuser was a violation of the restrictive condition which was implied in the easement granted; and for such excessive user Fair could not escape liability. This was the rationale upon which the controlling Mississippi case of H. Weston Lumber Co. v. Hibbens, 182 Miss. 669, 182 So. 115, was founded.

And as we observed in our original brief, Fair could only exercise the easement granted in such a reasonable manner as not to unnecessarily injure the rights of the owner or owners of the servient tenement.

Tiffany Real Property, Sec. 803; 19 C.J. 974, Sec. 218.

And as was held in H. Weston Lumber Co. v. Hibbens, supra, so long as possessory ownership of the dominant tenement rested in the lumber company, it could not escape liability for a misuser of the easement of way, even though the wrongful act was committed by an independent contractor, Pearson. This court said therein that only by a sale or a lease of the roadbed (the dominant tenement) could the obligation, covenant and promise to exercise the easement reasonably by shifted. In other words, just as the easement "ran with the land" so also ran the condition restricting its user in an unreasonable manner. Whoever acquired the easement also assumed this duty.

Where an easement is created by conveyance the transaction necessarily has the effect of changing the legal relations of the parties to it. New relations arise between them by virtue of which it may become the duty of one or both to act differently in the future from the way in which they could have acted in the past. Thus, the owner of the servient tenement may be unable to use that tenement in the future as he has in the past because to do so would interfere with the rights of the owner of the easement. If, however, he does interfere with any of those rights in such a way as to constitute a breach of duty on his part, the right he has violated is a property right and his breach of duty a tort.

Restatement, Property, Proposed Draft, pp. 206-207.

Naturally, the converse of the rule is equally true; and if the owner of the dominant tenement wrongfully uses the appurtenant easement in such a way as to constitute a breach of duty on his part, the right he has violated is also a property right, and his breach of duty is also a tort. Nevertheless, since the entry is made under the license and authority of the easement and the abuse occurs after the entry then he must be punished for his abuse, but shall not be a trespasser ab initio.

Six Carpenter's Case, 8 Coke 146.

If the license to enter had been given by the law he would have been considered a trespasser ab initio.

Dickson v. Parker, 3 How. (4 Miss.) 219; Six Carpenters' Case, supra.

Instead of trespass quare clausum fregit, an action lies for damages for breach of the condition or covenant attached to the easement by implication or by express provision.

Hall v. Louis Weber Bldg. Co., 73 N.Y.S. 997, 36 Misc. 551; Boults v. Mitchell, 15 Pa. 371; Biers v. McGinnis, 191 Mass. 279, 77 N.E. 768; Cf. Seaboard Air Line R. Co. v. Dorsey, 111 Fla. 22, 149 So. 759.

So that we find that even though the action is in tort, it arises out of the contractual relations of the parties, and the gist of the action is a breach of duty assumed, when the easement was created. As stated in the Restatement the violation sounds in tort because the rights violated are property rights. But whether the rights violated or the duties breached are classified as covenants, conditions or more generally as interests in property, we shall see that they "run with the land."

These considerations now bring us to the rights of a lessee of the servient tenement to enforce an action for a breach of the easement privileges by the owner of the dominant tenement.

It is elemental that "one who purchases land with notice that it is burdened with an existing easement takes the estate subject to the easement. He has no greater estate than his grantor to prevent or obstruct the use of the easement.

19 C.J. 939, Sec. 145.

Certainly the purchaser of an estate for years is subjected to the outstanding easement just as is a purchaser of an estate for life or in fee. So it is that appellants were entitled to exercise the easement rights as against appellee, and appellee's estate for years was burdened with the easement appurtenant to the outstanding timber estate.

The same rule applies against a lessee where the obligation is a pure covenant.

Baynes v. Chastain, 68 Ind. 376.

Would it not, therefore, follow naturally that if the burden of the easement "runs with the land" to a lessee for years, the correlative conditions or restrictive covenants annexed to the easement privileges would also run to him. Why should the lessee acquire all of the burdens and none of the benefits?

Let us suppose that Mrs. Alexander had conveyed the lands involved to appellee in fee simple absolute, subject to the timber estate previously conveyed to appellants. Could anyone doubt that the restrictions upon the outstanding easement appurtenant to the timber estate would not pass by succession to the grantee of the servient tenement?

If the easement could thereby be stripped of all of the restrictions, call them conditions, covenants or interest in land as you will, and the purchaser of the servient tenement could only acquire the attendant burdens with none of the beneficial restrictions upon its user, the land would be rendered practically unsalable, as the use of the servient tenement would have no safeguards whatsoever. But the law is otherwise.

Proposed Final Draft by Group 2 of the Restatement of the Law of Property, submitted to the American Law Institute at its meeting on May 11-14, 1943, "Promises Respecting the Use of Land," pp. 206-210, Sec. 95, p. 301, Sec. 83; Clark on Covenants and Interests Running with Land, p. 91; Tiffany, Real Property, Secs. 851, 854.

Such authorities as Hartford Accident Indemnity Co. v. Hewes, 190 Miss. 225, 199 So. 93, and Restatement, Contracts, p. 176, cited by appellants, have no application here since they did not involve property interests which "run with the land" and which directly protect and benefit the possessory estate as well as the reversionary interest.

The rights of a lessee for years are entitled to the same protection as a grantee of the whole fee for the reason that the lessee, during his term, is regarded as the absolute owner of the land.

Crowell v. New Orleans N.E.R. Co., 61 Miss. 631; State v. Burns, 123 Ind. 427, 24 N.E. 154; Walker v. Clifford, 128 Ala. 67, 29 So. 588, 86 Am. St. Rep. 74, 77.

It is elementary that the lessee succeeds to all the rights of his lessor during the term of his lease, unless expressly restricted by reservations and exceptions.

Let it be remembered that in this case appellee obligated himself to repair and maintain the fences in addition to the rental and expended $150 on the fences before the depredations were committed. And, because of the unnecessary destruction of the fences he was being required to again expend a similar sum to replace them.

Not only has the landlord a right of action for direct injuries to the land leased, or to structures thereon, but the tenant may also have a right of action therefor by reason of the consequent diminution of the value of his estate, such injury, if of a substantial character, being well calculated to affect the value of the rights of present possession and enjoyment. In several cases right of action in the tenant is asserted, not only on account of the injury to his rights of possession, but also on account of the injury to the reversion caused by the wrongful act, on the theory that the tenant being himself liable to the landlord on account of such injury, or under an express obligation to repair it, should be allowed to recover from the wrongdoer the amount for which he may thus be made liable.

Cook v. Champlain L. Co., 1 Denio (N.Y.) 91; Maeckel v. Cross Co., 190 Mass. 280, 76 N.E. 447; Weston v. Gravlin, 49 Vt. 507; Atterson v. Stevens, 1 Taunt 183; Pantam v. Isham, 1 Salk 19; Anthony v. N.Y.P. B.R. Co., 162 Mass. 60, 37 N.E. 780; Tiffany, Landlord Tenant, Sec. 352, p. 2102.

The ratio decedendi upon which the case of H. Weston Lumber Co. v. Hibbens, supra, rested was that it would be socially undesirable to permit the owner of an easement appurtenant to his estate to farm out the easement privileges in such a manner as to escape liability for its misuse to those persons entitled to demand a reasonable and proper exercise of such privileges. Because "Weston Company had not sold the road as an entirety, but only the rails and ties thereof" the court held that the highway easement was "burdened with the duty of observing due care." Weston Company could only escape this responsibility by "a valid (a) sale or (b) lease thereof to another." In case of a sale or lease, however, the grantee or lessee would thereupon occupy the same position. Now in the present case the "duty of observing due care" was owed to Mrs. Alexander and Mrs. Hunter, not personally, but as owners of the land burdened with the easement. Therefore, when appellee became the owner for years of the servient tenement the duty was owed to him. The right to enforce appellants' "duty of observing due care" was a valuable property right which was annexed to the estate and "ran with the land" acquired for years by appellee; and he is entitled to recover from appellant for the wanton violation of this right.

The provision in appellee's lease that "the lands are to be used . . . for agricultural purposes" has, without exception, been held to cover "the rearing, feeding and management of livestock."

Binzel v. Grogan, 67 Wis. 147, 150, 29 N.W. 895; United States v. United Verde Copper Co., 196 U.S. 207, 25 S.Ct. 222, 49 L.Ed. 449; McNeely v. State, 50 Tex. Civ. App. 279, 96 S.W. 1083; 2 C.J. 989.

To sum up: The timber estate belonged to appellants. Therefore, the easement appurtenant could be exercised only by appellants or their agents. The easement rights belonged to appellants; the "duty of observing due care" also rested upon them. Since appellants could not assign the easement rights away, they could not assign this duty. The servitude in this case was so affixed to the servient tenement that whosoever acquired any portion thereof or any possessory estate therein took it with the burden of the easement resting thereon. Appellee, therefore, assumed the duty of refraining from any interference with appellants' easement rights; and, correlatively, he had a right to demand of appellants that they perform to him "the duty of observing due care." This duty was not personal to Mrs. Alexander and Mrs. Hunter. It was created to protect the servient tenement and any subsequent owner of the whole of any lesser interest therein. Easements run with the dominant tenement to every person who succeeds to some interest therein. Servitudes run with the servient tenement and burden every person who succeeds to some interest therein. The total sum of the rights and duties and other legal relations which admeasure the extent of both the easement and the corresponding servitude also run with the two estates; and any successor to any part of either estate can assert them.

Argued orally by E.M. Livingston and J. Knox Huff, for appellant, and by O.B. Triplett, Jr., for appellee.


The appellee, Weems, recovered a judgment in the court below against the appellant, D.L. Fair Lumber Company, and one James Willis, for the sum of $400 actual damages and $700 punitive damages, and from which judgment the lumber company alone has prosecuted this appeal.

On a former day of the term we reversed and remanded the cause for the assessment of actual damages only, the majority of the judges being then of the opinion that punitive damages should not have been awarded as against the D.L. Fair Lumber Co.

Upon a reconsideration of the case the court has concluded that the evidence in support of the claim for actual damages is sufficient to support the verdict to the extent of $247.75, and that, therefore, a judgment should be rendered here for that amount. Now three of the judges are of the opinion that the proof justified the submission to the jury of the issue as to punitive damages against both of the defendants and that the award in that behalf should be accordingly affirmed. Hence the former opinion, reported in 15 So.2d 505, is withdrawn, the judgment of reversal and remand is set aside, and this opinion, affirming the judgment for actual damages to the extent above indicated and the award of punitive damages, is substituted as the decision of the issues involved.

The proof discloses that the appellant lumber company became the owner of the timber situated on certain lands which were subsequently leased by the landowners to the appellee, Weems, as a pasture. The lessee of the pasture lands paid as a consideration therefor for the first year the sum of $200 in cash and agreed to repair the fences which then enclosed the same, the cost of which repairs amounted to about $150, and he had the option to renew his lease at the end of that year. He was pasturing about 77 head of cattle in this enclosure when the lumber company employed the defendant Willis to cut and remove the timber thereon at an agreed price per thousand feet.

When Willis undertook to cut and remove the timber, the appellee, Weems, the lessee of the pasture as aforesaid, granted him the use of his barns, advised him of the presence of the cattle in the pasture, and requested that in the event the said Willis should cut any trees on the fence, he should repair the same before leaving the premises in order that the cattle might not escape through any broken places therein. Willis promised to do this, but failed to comply with his agreement in that behalf. He began cutting the timber in the early part of May, causing many trees to fall on the fence and tear it down to such an extent that the cattle began escaping from the pasture. Thereupon Weems made complaint to Willis repeatedly about cutting the trees on the fence and causing his cattle to escape, and with the result that Willis took the position that he could not repair the fence day by day or week after week as he tore it down, stating that after he had finished cutting the timber he would put up the fence before leaving the premises. The cutting of the timber, however, continued over a period of three or four months, and, in the meantime, the fence was destroyed, by the falling of the trees, for a distance of from one-fourth to one-half of a mile, with intervening breaks or gaps therein, such as to permit the cattle to escape at will.

There was testimony to the effect that the lessee, Weems, employed a negro to repair the fence while the timber cutting was in progress but that Willis would not permit the negro to do so. Complaint was also made during the month of May to the appellant lumber company with regard to the activities of the said Willis, and to which complaint the lumber company replied that "Willis has promised to be careful of the fence and to repair any damage which he causes before he leaves the premises." The lumber company was thereafter advised that Willis had not repaired the fence, and was continuing to destroy the same by cutting timber thereon. In fact, a representative of the lumber company visited the scene and saw what was being done, but the said company continued to permit Willis to violate its own duty to the landowners and his duty both to the lumber company, the landowners, and their lessee, of using reasonable care not to unnecessarily injure the improvements on the land.

That the lumber company, having continued in its ownership of the timber, which was being cut and removed by Willis, whether as an independent contractor or as its agent, was under a duty to the landowners, by virtue of the relationship created by the timber deed, to see to it that, in the exercise of its rights as holder of the easement to cut and removed the timber, due and reasonable care should be taken not to unnecessarily injure the property of the landowners, is supported by both reason and authority. United States v. Bostwick, 94 U.S. 53, 4 Otto 53, 24 L.Ed. 65; Jones v. Friedenburg, 66 Ga. 505, 42 Am. Rep. 86; Powell v. Dayton, etc., R.R., 16 Or. 33, 16 P. 863, 8 Am. St. Rep. 251; 62 C.J. 1092; 21 C.J.S., Covenants, Sec. 22, p. 898; 32 Am. Jur. 189, 665, 669; 1 Taylor, Landlord and Tenant (9th Ed.), p. 428; Comyns, Landlord and Tenant, 188. See also City Council of Greenville v. White, 194 Miss. 145, 11 So.2d 816. It could not delegate this responsibility to a third person in such manner as to be relieved of liability for a violation of its duty in that behalf. Moreover, the lessee of the pasture land had such an interest in the fence which enclosed the same as to entitle him to have the fence left unimpaired by any unnecessary damage to or destruction of the same, in order that it might constitute an effective enclosure for the cattle which were known to be pastured therein.

The jury was warranted in finding from the testimony, including that of some of the witnesses for the defendant, that it was not reasonably necessary for the trees to be cut so as to fall on the fence, and the jurors were entitled to use their own judgment and common experience and to reach the conclusion that standing timber adjacent to a fence may be cut in such manner as to be felled in another direction therefrom, except in such instances where the trees happen to be leaning toward the same, — at any rate, they were justified in finding from the proof of the fact that a sufficient number of trees had fallen across the fence to destroy it for a quarter or half of a mile as complained of, that no sort of care was exercised to prevent the destruction of the enclosure, and that no proper regard was shown for the rights of the lessee of the pasture either in the destruction of the fence or in the refusal to repair, as charged in the declaration, either during the period of the timber cutting, or thereafter; also, that no one would needlessly destroy a fence, as was done in this case, and to so great an extent with any intention of repairing it at all at so much trouble and expense as would have been entailed.

Such actual damages as we think were recoverable under the proof are claimed to have resulted from the loss of cattle by straying from the pasture, expense of corralling the escaping cattle and renting a temporary enclosure for them, loss of sub-rentals on the pasture, and the expense incurred and time lost by the lessee in going to and from the premises in order to reduce his damages by preventing the escape and loss of more cattle from the enclosure, a majority of the judges being of the opinion that the items of such actual damages as are claimed from other considerations are not recoverable under the facts of this case.

On the question of punitive damages, the affirming judges are of the opinion, as hereinbefore indicated, that the owner of the timber standing on the land of another owes the latter the duty to use reasonable care in removing the timber so as not to injure the other's property; and this duty is owed likewise to a tenant of the landowner so far as concerns the possession and use of tenant. The obligation is one put in or raised by the law and results from the relation of the timber owner and the owner of the land at the time of the removal of the timber, without the necessity of any contract between them so prescribing. The duty, moreover, is nondelegable, else the timber owner would have the power to place its performance in the hands of a party wholly without moral or financial responsibility and thus strip the landowner of any effective remedy for violation of the stated duty, however gross and oppressive, other than a recourse to the nonlegal preventive remedy of force and violence.

Therefore, the timber owner may not commit the work of the removal of the timber to an independent contractor and thereby escape responsibility for negligent and unnecessary injury to the property of the landowner or his tenant; and as to such injury the so-called independent contractor will be deemed the servant or employee of the timber owner, and the latter will be liable to the landowner or his tenant for negligent and unnecessary injuries to the same extent and as fully as had the damage been done by the timber owner himself.

It is conceded by every member of the court that what has been stated in the two foregoing paragraphs is true as to actual damage negligently and unnecessarily done in the removal of the timber and that as to such actual damage the independent contractor occupies no such a status, but is an employee or agent of the timber owner, whatever the contract between them may be. The contention is made, however, that upon the issue of punitive damages for gross or wilful negligence on the part of the person employed to remove the timber, that person will be an independent contractor acting, not for the timber owner who placed him there to remove the timber, but for himself and as his own man, if his contract with the timber owner was that of an independent contractor, — in other words, as to actual damages the person removing the timber is the agent or employee of the timber owner, but as to punitive damages he is no such agent or employee, but acts for himself alone.

As has been stated, it is the duty of the timber owner in removing the timber to do so in a manner whereby the land and the other property thereon and belonging thereto will not be negligently or unnecessarily injured, and that he may not rid himself of this obligation by committing its performance to another. Since, then, this duty prohibits negligent performance, it prohibits for the stronger reason a grossly or wilfully negligent performance, and to attempt to separate them so as to make the performer the agent or employee as to negligence but not as to gross negligence, is no more than an attempt, in another, although perhaps more subtle form, to revive the ancient contention that the doctrine respondeat superior applies only to actual or compensatory damages, — a contention which was rejected and the contrary established in the leading case in this State, New Orleans, etc., R. Co. v. Bailey, 40 Miss. 395, which has never been departed from in the slightest but has been reaffirmed in perhaps a hundred other cases since. We have throughout our judicial history rejected the doctrine maintained in a few jurisdictions that an employer, in order to be held in punitive damages, must have ratified the gross or wilful breach of duty done by the person employed by him, but in the case now before us, even if this were required, the facts are that the general agent of the timber owner having superior charge of such matters was fully informed of what was being done by the so-called independent contractor, and this general agent went actually upon the ground during the month of July and confesses that he there saw that something like half a mile of this fence had been knocked down by the employee, yet nothing was done about it except to allow this employee to go on doing as he had done until in August, at which time the damage had reached about three-quarters of a mile of fence injured or destroyed. There is no room to talk about any injustice to the timber owner by the judgment or punitive damages in this case. He actually saw the damage going on, yet he put his hands in his pocket, did nothing about it, except to insist that he had no part in it — that it was being done by an independent contractor.

Nor may escape be made by the contention that the duty which here was so wilfully and oppressively flouted was one arising by contract and that punitive damages may not be recovered for a mere contract violation. We have held, and now reaffirm it, that punitive damages may be recovered for breach of contract when the breach is attended by such gross negligence or willful wrong as to amount to a tort, Hood v. Moffett, 109 Miss. 757, 69 So. 664, L.R.A. 1916B, 622, Ann. Cas. 1917E, 410, American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761; and it needs no authority to sustain the proposition that the breaking down and destruction of another's fence is a tort, and when done under circumstances of such gross and persistent wrong as to manifest an indifference to the consequences and of the rights of others, that it is a tort which will justify punitive damages; and that is what the jury found, and was well supported by the evidence and finding in this case.

The verdict of the jury and judgment of the court below must, therefore, be affirmed in accordance with the views hereinbefore expressed, that is to say, as modified allowing a recovery to the extent only of $247.75 instead of $400, as actual damages, and the amount of punitive damages in the sum of $700 awarded by the jury.


Summaries of

D.L. Fair Lumber Co. v. Weems

Supreme Court of Mississippi, In Banc
Feb 14, 1944
196 Miss. 201 (Miss. 1944)

In D.L. Fair Lumber Co. v. Weems, 196 Miss. 201 (1944), 16 So.2d 770, 771, a lumber company owned timber that was located on Weems's land. The lumber company planned to cut and remove the timber and obtained permission from Weems to do so.

Summary of this case from Alexander v. Brown
Case details for

D.L. Fair Lumber Co. v. Weems

Case Details

Full title:D.L. FAIR LUMBER CO. v. WEEMS

Court:Supreme Court of Mississippi, In Banc

Date published: Feb 14, 1944


196 Miss. 201 (Miss. 1944)
16 So. 2d 770

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