Opinion
No. 38985.
June 14, 1954.
1. Trespass — cutting of storm damaged timber — evidence — judgment for timber admittedly cut under agreement — statutory penalty not invoked.
In suit to recover value of timber allegedly wrongfully cut and removed from complainant's land, damages, and statutory penalty, evidence sustained finding that plaintiff and defendant had oral agreement whereunder defendant should cut and remove timber which in his judgment would die as a result of storm damage, that defendant acted in good faith, and that complainant failed to show by preponderance of the evidence that defendant had cut timber which he was not authorized to cut under the agreement, and thus complainant was entitled to recover only in the amount equivalent to value of storm damaged timber, admittedly cut and for which defendant conceded liability under the agreement, but that defendant was not liable for the statutory penalty. Sec. 1075, Code 1942, as amended by Chap. 312 Sec. 2, Laws 1950.
Headnote as approved by Ethridge, J.
APPEAL from the circuit court of Adams County; F.D. HEWITT, Chancellor.
Joseph E. Brown, L.A. Whittington, Natchez, for appellant.
I. The defendant, contrary to the contract and agreement under which he entered upon the land, cut timber and trees not authorized to be cut.
II. The defendant was liable for the statutory penalty for timber unauthorized to be cut, and which he did cut.
III. The appellant was entitled to the actual value of the timber and trees cut by defendant which were not authorized to be cut by him.
IV. The defendant denuded complainant's land of all the pine trees of pulpwood size except one hundred and eighty trees, thereby causing damage to the appellant.
Berger Callon; Brandon, Brandon, Hornsby Handy, Natchez, for appellee.
I. The sole issue is whether or not there was cut by appellee in good faith timber that was not so broken that it would die as a result of the storm, and all of the witnesses offered by appellee testified that appellee did not, and not a single witness offered by appellant testified that appellee did.
II. The Court did not err in refusing to hold that the defendant was liable for the statutory penalty for the willful, wrongful, and unlawful cutting of two thousand two hundred and forty-two pine trees.
III. The Court did not err in disallowing the Statutory penalty.
IV. The Contention is made that appellant is entitled to $7,500 damages because there were only one hundred and eighty living trees left on Egypt Plantation. The answer to that question is that the evidence by the appellees was that there were over fifty thousand trees left on the place.
V. Appellant complains that the awarding of only $2.25 per cord as a reasonable value for the pulpwood is error on the grounds namely that it would be allowing them only twenty cents per tree. The answer to this is also ridiculous because pulpwood is not sold by the tree but is sold by the cord, as any man in the timber business knows and for which no evidence to the contrary was offered by appellant. In fact, the sum of $2.25 per cord is from seventy-five cents to $1.25 higher than the price for similar storm damaged timber being received by the Forestry Service. The Chancellor found the reasonable value to be $2.25, and there was absolutely no evidence to the contrary.
VI. The appellant complains because a special master was not appointed in this case. Not only was there no necessity for the appointing of a master, but this was in the sound discretion of the Court, which refused to so do, and certainly no error in the refusal can be complained of here.
VII. It is a rule well established in this State that the decision of the Chancellor on the facts will not be disturbed unless manifestly erroneous. D.S. Pate Lumber Co. v. Weathers, 167 Miss. 228, 146 So. 433; Pierce v. Ford, 199 Miss. 168, 24 So.2d 349; Stringer v. Craft, 209 Miss. 326, 46 So.2d 791; Vell v. Percy, 214 Miss. 456, 59 So.2d 76; Griffith's Miss. Chancery Practice (2d ed.), Sec. 674.
Appellant, Mrs. Mary Armstrong, filed this suit in the Chancery Court of Adams County against T.O. Trawick and International Paper Company. After appeal was taken, Trawick died and the cause was revived in the name of his administratrix. Appellant confesses that the decree was correct insofar as it dismissed her bill against the Company.
Appellant sued to recover the value of pine timber which she alleged was wrongfully cut and removed from her plantation by T.O. Trawick, for damages to the plantation, and for the statutory penalty. Egypt Plantation is a large tract of land in Adams County containing 1,300 acres and owned by appellant. Around February 1, 1951, there was an extremely severe ice storm over a large part of Mississippi, including Adams County, and much timber was damaged or destroyed. Shortly after the ice storm, appellant, acting through her husband, made an oral agreement with Trawick, who was in the business of buying pulpwood timber, which he sold to International Paper Company. This contract was wholly verbal, and according to the chancellor's finding of fact, which was amply supported by testimony, Trawick agreed to cut the storm damaged timber from Egypt Plantation, cutting only such pine timber as was so injured by the ice that it would afterwards die. His agreement with appellant was to "handle it just like it was mine, and cut what he thought should come out." Trawick then put his supervisor and assistants on the plantation with instructions to cut no timber which was not so damaged that it would eventually die. After this work had gone on for several weeks, appellant stopped Trawick from further cutting.
Later this suit was brought, and appellant's witnesses asserted that not over 10 to 25 percent of the timber on Egypt Plantation was so damaged by the ice that it would have ultimately died, and that Trawick had practically denuded the place of pine timber, including undamaged timber. On the other hand, Trawick and his witnesses testified that from 80 to 90 percent of the timber on this tract would have died, and denied that they cut any except the authorized timber. There was a straight dispute of fact on that issue. Moreover, Trawick's testimony was to the effect that his agreement with appellant vested in his sound judgment and discretion the right to say whether a particular tree would probably die from the ice damage. Neither appellant nor her husband testified, and there was no contradiction of Trawick's position on this aspect of the agreement. Trawick further said that he told Judge Armstrong, appellant's husband and agent, and he agreed, that the percentage of damage to the timber on Egypt Plantation would probably run from 75 to 95 percent of the total amount on the place, and there was no contradiction of that.
(Hn 1) The chancellor found that appellant and Trawick had "an oral contract loosely entered into by both parties with no restrictions except that Trawick was not to cut any timber which in his judgment would not die as a result of the storm damage." There is ample evidence to support this and the further finding that appellant failed to show by a preponderance of the evidence that Trawick cut timber which he was not authorized to cut under his agreement with appellant. Without lengthening this opinion by detailing the evidence, we will say that these findings of the chancery court are supported by the evidence, and certainly we could not say that the court was manifestly wrong. The final decree properly gave appellant a judgment against appellee in the sum of $2,249.92, representing the amount of storm damaged timber which Trawick admitted cutting and for which he conceded liability under the contract. Since appellee's testimony showed, and the chancery court found, that Trawick was acting in good faith and under his agreement with appellant when he cut the storm damaged timber, appellee was not liable for the statutory penalty. See Mississippi Code 1942, Section 1075, as amended by Mississippi Laws 1950, Chapter 312, Section 2; Reynolds v. McGehee, 71 So.2d 780 (Miss. 1954).
Affirmed.
McGehee, C.J., and Hall, Lee and Gillespie, JJ., concur.