Illinois Cent. R.R. Co. v. Coln

110 So. 782, 145 Miss. 399, 1926 Miss. LEXIS 37

Opinions

ANDeksoN, J.,

delivered the opinion of the court.

Appellee, Mrs. M. E. Coin, brought this action in the circuit court of Alcorn county ag'ainst appellant, Illinois Central Railroad Company, to recover damages for the alleged wrongful destruction by fire of the grass and trees on appellee’s land, and recovered a judgment in the sum of five hundred and fifty dollars and costs. From that judgment, appellant prosecutes an appeal and appellee a cross-appeal.

Appellee’s declaration is in two counts. The first count charges that under the direction of appellant’s section foreman while engaged in his duties as such, ill clearing; off and burning off appellant’s railroad right of way, through the willful, gross, and wanton negligence of such section foreman and his crew, fire was permitted to get out from the railroad right of way onto appellee’s land, destroying thereon about two acres of pasture grass, five bushels of corn worth sixty cents per bushel, seven hundred forty willow trees, two hundred seventy ash trees, eighty sycamore trees, thirty-six gum trees, twenty-two elm trees, three persimmon trees, five oak trees, three poplar trees, and four box trees, to the damage of appellant in the sum of two thousand five hundred twenty-three dollars. The second count of the declaration alleges that, through the willful and wanton negligence of appellant’s section crew in the performance of their duties as set out in the first count, they permitted the fire on appellant’s right of way to spread therefrom onto appellee’s land and destroy tlie trees and tlie grass on her pasture. The second count sets ont, as does the first count, the number and kinds of trees destroyed by fire, and concludes with a demand for judgment for one hundred fifty dollars, the statutory penalty under section 4988, Code of 1906- (section 3257, Hemingway’s Code).

At the conclusion of the evidence, appellant requested a directed verdict in its favor, which was denied by the court. And appellant also requested and the court refused an instruction to the effect that it was necessary for the evidence to show the actual sum of the damages due appellee. Appellee requested an instruction to the effect that, if the jury believed from the evidence that appellant’s section crew willfully and wantonly set out out the fire which spread onto appellee’s land and destroyed the timber thereon, they should return a verdict in the sum of fifteen dollars per tree for the gum trees, the elm trees, the persimmon trees, the oak trees, the poplar trees, and the ash trees destroyed, and five dollars per tree for all oilier trees destroyed. The court refused this instruction. Appellee thereupon made application to the court to be permitted to amend the second count of her declaration so as to sue for the statutory penalty for the trees destroyed under section 4977, Code of 1906 (section 3246, Hemingway’s Code), as amended by chapter 167 of the Laws of 1924. The court denied such application. The refusal of that instruction requested by appellee, and the refusal of her application to so amend the first count of her declaration, form the bases of her cross-appeal. The court gave an instruction for appellee, by which it told the jury that, if they believed from the preponderance of the evidence that through the willful and wanton negligence of appellant’s section crew the fire was allowed to get onto appellee’s land and injure her trees and grass, the jury should return a verdict “in addition to the damage to the trees, grass, and corn, in tlie sum of one hundred fifty dollars as a penalty against the defendant. ’ ’

The serious question on direct appeal is -whether there was sufficient evidence to go to the jury on the issue as to the actual damage done to the trees and grass on appel-lee ’s land. There was no witness offered on behalf of ap-pellee who testified as to the damage done appellee’s pasture and the trees on her land, who undertook.in his testimony to measure the amount of such damage in any given sum of money. The evidence showed that the five bushels, of corn were worth three dollars. As to the trees, the evidence on behalf of appellee tended to show substantially the following" facts: How much of the land was burned over, and the number and size of the gum trees, elm trees, persimmon trees, oak trees, poplar trees, ash trees, and other kinds of trees injured and killed by the fire. The witnesses did not undertake to give the exact diameter of all the trees destroyed, but gave an estimate of the minimum and maximum size at the stump. The evidence on behalf of appellant tended to show that the fire wa's without damage.to appellee; that the trees and grass on her land were worthless; and that her land was benefited, rather than injured, by the fire.

Appellant’s position is that, in the absence of any evidence measuring; the damage suffered by appellee in the currency of the country, the jury had no ground upon which to base their verdict as to the sum of four hundred dollars, the verdict of the- jury being for five hundred fifty dollars, of which one hundred fifty dollars could have been and, doubtless, was for the statutory penalty provided by section 4988, Code of 1906 (section 3257, Hemingway’s 'Code), which provides that any person who shall willfully or wantonly set out fire on the lands of another, or carelessly allow any fire to get onto the lands of another, shall be liable for a penalty of one hundred fifty dollars. Appellant contends that at least as to the four hundred dollars of the verdict the jury had no evidence upon which to base their verdict, except as to the three dollars of the amount, which was the value of the corn destroyed. And this contention is founded on the theory that the evidence for neither appellant nor appellee tended to show the damage done appel-lee’s grass and trees measured by the currency of the country; in other words, it was necessary for the evidence to show or tend to show the amount of damage done the pasture and trees in dollars or dollars and cents. In Salter v. Jennings Furniture Co. (Miss.), 109 So. 704, there was involved the value of secondhand furniture. The jury were required to find and return the value in their verdict. The sheriff’s return showed the value of the property involved to. be one thousand one hundred forty-nine dollars. The only other evidence as to its value was the testimony of Salter, the defendant, who fixed the value of the furniture at not more than six hundred dollars. The evidence showed, however, the original cost of the furniture, how long it had been in use, and its condition and appearance. The jury fixed the value of the furniture at one thousand four hundred seventy-nine dollars. The court held that, under the principles of law governing that case, the jury were justified in their verdict. The court said that the value of such property was a matter of opinion based on the evidence of its condition, usefulness, and appearance; that its value might be shown by nonexpert testimony; that the value of such property necessarily came within the knowledge of a great number of persons; that no witness could testify positively that such property was worth so many dollars, as might be testified to with reference to personal property having a fixed market value and quoted upon the markets of the country; that the jury, in addition to the evidence of the witnesses describing the kind and character of the property, had the right to apply their own knowledge to such matters, acquired by experience and observation; that it was their duty to use such knowledge along with the evidence in the ease, and deduce from the whole their judgment of the value of the property. It was said by the court in Hercules Powder Co. v. Lee Williamson, 145 Miss. 172, 110 So. 244, in its opinion handed down Monday, October 26, 1926, that — “The ordinary jury is supposed to be, and is usually comprised of men of education and men of little education, of men of learning in particular lines, and men whose learning consists of only what they have seen and heard, of merchants, mechanics, farmers, and laborers. Thus constituted, they sit together consulting and applying their separate experiences in the affairs of life, and from the proven facts draw their conclusions. ‘This average judgment thus given it is the great effort of the law to -obtain. It is assumed that twelve men know more, of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge’ ” — citing Sioux City & Pacific Railway Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745.

The verdict of the jury on a question of this character is necessarily a mere .matter of opinion on their part. It is their concensus of opinion made up from the evidence of the witnesses as well as their own knowledge gained from observation and experience. No witness, in the nature of the matter, could give any more than an opinion on the subject. The jury has the right, if justified by the evidence, to disregard entirely the opinions of the witnesses as to the sum of the damage in dollars, in determining a question of this character. The verdict in this case was the mere opinion of the jury, based on the evidence as to the amount of grass destroyed, and the number and character of the different kinds of trees destroyed and their size, and the knowledge of the jury of such matters acquired from their observation and experience; and their verdict, could have been nothing more if a dozen witnesses had each given an opinion as to what, in their judgment, was the sum of the damage done appellee. We are of opinion, therefore, that the evidence was definite enough as to the value of tlie grass and trees to justify the verdict of the jury. The other questions argued on direct appeal, we think, are without merit, and we do not consider them of sufficient gravity to call for a discussion by the court.

The cross-appeal by appellee presents the question whether or not under section 4977, Code of 1906 (section 3246, Hemingway’s Code), as amended by chapter 167, Laws of 1924, and section 4988, Code of 1906 (section 3257, Hemingway’s Code), there may be a recovery of two statutory penalties for the destruction of trees, one under each one of those statutes. The only change made by chapter 167, Laws of 1924, in section 4977, Code of 1906 (section 3246, Hemingway’s Code), was to add to the section as it appeared in the Code the right of the owner to recover, in addition to the statutory penalty for the trees, the actual value thereof in the same suit. Those two statutes, in the order referred to above, are in the following language:

Chapter 167, Laws 1924:

“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. ’ ’

Section 3257, Hemingway’s Code (4988):

“By Firing Woods. — If any person shall set on fire any lands of another, or shall wantonly, negligently, or carelessly allow any fire to get into the lands of another, he shall he liable to the person injured thereby, not only for the injury to or destruction of buildings, fences, and the like, but for the burning and injury of trees, timber, and grass, and damage to the range as well; and shall moreover be liable to a penalty of one hundred and fifty dollars in favor of the owner.”

It will be observed that each of these statutes provides, among other things, a penalty for the wrongful destruction of trees. The first statute copied above, as construed by the decisions of our court, denounces a penalty against any person for the willful and wanton destruction of each character of tree therein named. The statute by its terms includes all kinds of trees. The second statute denounces a penalty of one hundred and fifty dollars against the person willfully or wantonly injuring or destroying by fire trees and other property therein enumerated. Appellee recovered the penalty of one hundred and fifty dollars provided by the second statute. She sought by her requested instruction, refused by the court, and by the amendment to the first count of the declaration, to recover, in addition, the statutory penalty for destroying the trees on her land, denounced by the first statute. We think the court committed no error in refusing the appellee’s instruction, and in denying her application to amend the first count of the declaration. She was not entitled to recover the statutory penalties provided for in both of the statutes. Both statutes deal with the willful and wanton injury and destruction of trees. It is unnecessary to decide whether or not the first statute referred to covers the destruction of trees by fire. But, conceding for argument’s sake that it does, the result would be two statutes dealing with the same subject-matter, each providing a separate and distinct penalty for the injury and destruction of trees by fire. Both penalties cannot be recovered. It is not conceivable tliat the legislature intended for the same act to impose a double penalty, and, in addition thereto, actual damages. Both of these statutes are highly penal, and, taken separately and together, must be strictly construed in favor of the person against whom the penalties therein provided are claimed. It results from these views that the ease is affirmed on both direct and cross-appeal.

Affirmed on both direct and cross-appeals.