Fleming v. Dunigan Cooperage Co.

109 So. 851, 144 Miss. 769, 1926 Miss. LEXIS 363

• Court: Mississippi Supreme Court
• Decided: October 25, 1926
• Docket: No. 25868.
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Appellant was plaintiff in the court below and filed a declaration claiming one thousand nine hundred dollars statutory penalty for the cutting, by defendants without plaintiff’s consent, of certain .trees upon certain lands belonging to plaintiff, and also suing for two hundred dollars actual damages for the cutting of said trees and the building of certain camp houses upon the land of plaintiff. . ...

The demands appeared in the first part of the declamation in what purports to be separate counts, but concludes with the following language:

“Plaijntiff therefore brings this suit and ‘demands judgment of and from the defendants jointly and severally in the total amount of two thousand dollars ($2,000), the same being the aforesaid statutory penalty sued for in the first count of this declaration and the aforesaid actual damages sued for in the- second count of this declaration, and also all court costs in this behalf expended.”

The defendants filed the following demurrer to that part of the declaration called the second count:

“Come now the defendants and demur to the second count of the plaintiff’s declaration, and, for cause of demurrer, assign the following' reasons, to-wit: First, that second count fails to charge a legal .cause of action; second, said second count undertakes to charge a cause of action against the defendants for the market value of the timber alleged to have been cut and destroyed, and in the same count joins with it a demand of statutory penalty as provided by law; third, said second count of declaration has two causes of action stated in same, and are insufficient in law.”

This demurrer was sustained by the court, and the cause proceeded to trial on the other items claimed in the declaration, resulting in judgment for defendants.

Chapter 167, Daws 1924, amended section 3246, Hemingway’s Code (section 4977, Code of 1906), so as to read as follows:

“If any person shall cut down, deaden, destroy or take away, if already cut or fallen, any cypress, white oak, black oak, or other oak, pine, poplar, black walnut, cherry, pecan, hickory, chestnut, birch, ash, holly, gum, persimmon, or beech tree, on land not his own without the consent of the owner, he shall pay to the owner of the tree or trees, as a penalty, fifteen dollars for every such tree so cut down, deadened, destroyed or taken away; and for every other tree not herein described so cut down, deadened, destroyed, or taken away, the sum of five dollars shall be paid as a penalty. And in addition to the penalty to be paid as herein provided, he shall pay to the owner of such tree or- trees the actual value of such tree or trees so cut down, deadened, destroyed or taken away; and for such actual damages and for such penalty the owner may recover in the same suit.”

A careful reading of this section shows it was the . purpose of the legislature to authorize bringing of a suit for both the statutory penalty and the actual damages, and that they, together, constitute one cause of action and need not be placed in separate counts. In fact, we think proper pleading requires that both demands be set forth in the same count, and that it is better pleading to so state the cause of action.

It was not the legislative purpose to require the plaintiff to go into one court for the statutory penalty and into another court to secure damages for the actual value. To so do would destroy the purpose of the section authorizing them to be recovered in a single suit.

The court below therefore was in- error in splitting the cause of action and denying plaintiff the right to recover the actual value in the same suit as the statutory penalty was sought to be recovered.

It may be in many cases that the actual value would be below circuit court jurisdiction if it stood alone, and the statutory penalty would require the suit to be brought in the circuit court. Both the statutory penalty and the actual damages must be recovered, if at all, in the same suit.

This view necessitates the reversal of the judgment and the remanding of the case for a new trial on the whole issue.

Reversed and remanded.

On Suggestion oar Error.

While we think that we correctly construed chapter 167, Laws of 1924, we erred in applying it to the case at bar because the trespass occurred prior to the passage of the said act, and, consequently, section 3246, Hemingway’s Code (section 4977, Code of 1906), governs the rights of the litigants here.

It is said that the amendment and rule applied in the former decision of this case should be adhered to because chapter 167, Laws of 1924, applies to the remedy only. In Roell v. Shields, 124 Miss. 226, 86 So. 763, and Ladnier v. Ingram Day Lumber Co., 123 Miss. 238, 85 So. 196, it was held a plaintiff in trespass, under the section above mentioned, could sue either for the statutory penalty or the actual damage, but not for both. The amendment to chapter 167, Laws of 1924, changes the right and gives the plaintiff the right to recover both; consequently, it is not a statute governing the mere remedy, but one affecting the rights of the parties.

We are of the opinion that there is no merit in the other assignments in the original hearing.

It is urged by appellee that the proof shows that at least eight trees were cut without authority, and that a conveyance of timber must be in writing, and, as there was no writing, the statutory penalty applies. We think the proof sufficient to show that the act was done under an idea that verbal permission was given to cut trees, and that 'the evidence was sufficient to go to the jury on that proposition; and the jury adopted the theory of the appellees with reference theréto. To bring the trespass within the rule of the statute above referred to reqiiires the trespass to be willful and without right, and the proof for the appellees did not so bring it within such rule.

The suggestion of érror mil therefore be sustained and the judgment affirmed.

■ Suggestion of error sustained. and judgment affirmed.