Opinion
No. 27342.
February 4, 1929.
1. TRESPASS. Defendant's reliance upon fence as boundary line, when purchasing land, precluded recovery of statutory penalty for cutting trees within fence on plaintiff's land.
Defendant's reliance upon fence as being correct boundary line, when purchasing land, precluded recovery of statutory penalty for cutting trees within fence on plaintiff's land.
2. TRESPASS. That defendant's employee thought trees on plaintiff's land should be cut, without reasonable foundation for thinking so, was no defense.
That defendant's employee thought trees outside defendant's fence on plaintiff's land ought to be cut, without a reasonable and prudent foundation for thinking so, was no defense for cutting trees.
3. MASTER AND SERVANT. Employee's cutting trees on plaintiff's land, in violation of instructions, did not render defendant employer liable for statutory penalty.
Where defendant employer gave employee positive directions to cut trees only within fence, but employee cut trees on plaintiff's land beyond fence, employee's unauthorized act did not render employer liable for statutory penalty.
APPEAL from circuit court of Copiah county, HON.E.J. SIMMONS, Judge.
Wilson Henley, for appellant.
Plaintiff was entitled to a peremptory instruction on the question of statutory penalty. Such instruction was requested and refused. As heretofore stated, every element of this case is undisputed, except the question of the degree of care used in attempting to avoid the trespass, and it is our position that the facts in respect to this feature of the case are undisputed, and that the peremptory instruction should have been given.
We think that the correct rule has been announced by this court in Keirn v. Warfield, 60 Miss. 807.
M.S. McNeil, for appellee.
That the trees were cut on the plaintiff's land; that they were cut without the plaintiff's consent; that they were cut within twelve months before the suit was commenced; that they were cut by the defendant or his agents, acting within the scope of their employment, there is no dispute. The only question for the decision of this court is whether or not there was a trespass committed by appellee in wilful disregard of the rights of the appellant. See Therrell v. Ellis, 83 Miss. 494; Rector v. Outzen, 63 Miss. 254; Keirn v. Warfield, 60 Miss. 799; Mhoon v. Greenfield, 52 Miss. 434; McCleary v. Anthony, 54 Miss. 708; Perkins v. Hackleman, 26 Miss. 41.
Counsel in their brief make this statement: "There is not a dispute anywhere in this record with reference to the degree of care which Parsons used to avoid cutting the forty-acre tract of timber, and a peremptory instruction should have been given either to the plaintiff or defendant on the question of statutory damages."
In the light of the foregoing authorities we do not agree with counsel on this proposition. We think that under the authorities cited, and after the introduction of the evidence on behalf of the plaintiff, showing the cutting was by accident, inadvertence, mistake, or whether or not Parsons used reasonable care and caution, and this was fairly submitted to the jury under all of the instructions.
Appellant sued appellee for actual damages and for the statutory penalty on account of the unauthorized cutting by appellee of three hundred and sixty trees on the lands of appellant. The parties were adjoining proprietors, the land owned by appellee having for some years been known as the McLemore place. This place had, for a long time, been under fence, and, when appellee purchased the property, he was given to understand that the line separating his land from that of appellant was the fence aforesaid; and, when he sent his employees to cut the timber on his land, he instructed them to cut all the timber within his fence, and the employees who did the cutting admitted that this was the order given and no other; but the employees of appellee, in pursuing the work, cut not only the timber inside the fence, but went beyond and cut twelve trees outside.
It now turns out that the fence line in question was not the true land line, but was located, at the place of the trespass, over on the land of appellant.
The record, as it has been brought before us, is in an unsatisfactory condition, so much so that repeated reviews of it, both in chambers and in consultation, have been necessary in order to arrive at a definite and dependable conclusion. This has been brought about by the fact that the locations of boundary lines, fences, and landmarks were involved in sharp issue between the parties, and nearly all the testimony in the case was placed before the trial court and jury by the use of a map or diagram, and yet this diagram is not a part of the record. Typical of what effect this omission has had in making a large and important part of the record practically unintelligible are the following question and answer in the testimony of Mr. Wilson, the general manager of appellant company:
"Q. Did you notice the fences around there? A. Yes, sir. I have been over them both carefully. All the fences I saw there were built by Mr. Graves; I understood they were built by him. A little piece of fence had been built by Mr. Liston Strong. A fence run along here and came along within, say two hundred or one hundred fifty yards of this, up through here, and up north of that forty and along back here. This is an old field in here. That forty is there. And the fence run along, appeared to be the best estimate we could get over on that forty there. This is an old field with an old field running on this forty a little bit. There is a little bit of an old field in here about seven or eight acres in there. The only new fence is the fence Mr. Strong built from the corner of the land up here to the Graves fence, so it included this strip of open land."
When complaining of alleged error in the trial court, appellant brings a record here for our review, he should attend to it that a complete record is brought, and in such condition that we can see and know exactly what was the case made and the testimony taken in the trial court, and this too in such shape that this court, pressed as it is by case upon case, and by a constant stream of new cases coming on for determination, shall not be put to the unwarranted drudgery and waste of time in the labor of piecing out what the record is. This matter has been the subject of comment here in past years, and we reaffirm what in effect was then said, that we shall reserve the right to affirm, without review, when records are so presented.
We have, however, been able to make out of the record, imperfect as it is, enough to justify us in the conclusion that the complaint of error, that the jury did not allow the statutory penalty for the trees cut inside the McLemore fence, is not well founded. In view of the general situation, the many generations that have maintained their settlements in the county and in the community where this trespass occurred, the well-known inclination of the inhabitants in long occupied territory to accept fence lines as the correct lines, the practically undisputed testimony that, when appellee purchased the said McLemore place, he was led to rely, and did rely upon said fence as being the correct line — all this, we think, would preclude a recovery of the statutory penalty for cutting trees within the fence. The conditions mentioned were at least enough to put the appellee off his guard in the matter, and to place him, in the absence of express and satisfactory proof to the contrary — which we cannot make out from this largely unintelligible record — beyond the range of any just application against him of the highly penal demand under the statute.
Such being the case, the two erroneous instructions granted to the appellee, if they were erroneous, were not materially prejudicial.
But, as to the trees cut outside the fence, the testimony is undisputed that twelve of these were cut within the year, and the testimony nowhere shows any lawful excuse therefor. It is true the employee who was doing the work for appellee says he thought they ought to be cut, although outside the fence, because they were in an old field; but what being in an old field had to do with it he wholly fails to explain, or, if it be said that he did somehow or somewhere explain, we have failed to find any explanation that comes within the law as such. To say that a trespasser thought this or that, without producing a state of facts upon which his thought could have a reasonable and prudent foundation, is no defense.
However, as has already been mentioned, appellee gave positive directions that this employee should cut only within the fence, and this is admitted. When an employer gives definite instructions to go only to a wellmarked and clearly defined line, such as a fence or a stream, one so distinct and obtrusive that it could not be anticipated by any sort of reasonable supposition that the employee would go beyond it, the unauthorized act of the employee in departing in such a situation from the definite instructions, so easy to be followed, will not render the employer liable for the statutory penalty, although otherwise as to common-law damages. In such a case, there is a distinction, often overlooked, between damages, actual and exemplary, which are allowed against an employer by the rules of the common law upon general principles of public policy, and those special penalties, strictly statutory, which are designed chiefly as punishment, are quasi-criminal, and which therefore should be allowed against the employer only in case of culpable fault or omission on his part. 21 R.C.L. 215; 30 Cyc. 1341; 6 Labatt, Master Servant, section 2497(3); McCleary v. Anthony, 54 Miss. 708; Fairchild v. N.O. etc., R. Co., 60 Miss. 931, 45 Am. Rep. 427; Smith v. Saucier, (Miss.) 40 So. 329.
Affirmed.