Summary
In Richardson, et al v. Flowers, 11 So.2d 808, the exact situation existed as existed in the case at bar, and the trees were cut by the employees of Flowers. Flowers, having pled that he had no part in the trespass and therefore was not chargeable with it, the court said: "We hold under the authority of Planters' Package Co. v. Parsons, 153 Miss. 9, 120 So. 200, that Flowers is not liable for the statutory penalty for the trespass of his servants committed without his knowledge or consent.
Summary of this case from Sansing v. ThomasOpinion
No. 35206.
February 1, 1943.
1. TRESPASS.
The statutory penalty for cutting trees is not allowable except in cases of willful trespass or gross negligence to take proper care to avoid such trespass.
2. MASTER AND SERVANT.
Where defendant's servants without his knowledge or consent cut trees on plaintiffs' property, defendant was not liable for the statutory penalty, since the trespass was not his trespass unless it was either expressly authorized or was caused by his negligence.
3. APPEAL AND ERROR.
A question not raised by an assignment of error in the circuit court on appeal from county court cannot be raised for the first time on appeal to the Supreme Court.
APPEAL from the circuit court of Coahoma county, HON. JOHN W. CRISLER, Judge.
Caldwell Caldwell, of Charleston, and T.N. Gore, of Marks, for appellants.
While an employer may not be liable for the negligence of an independent contractor, if a proper person, where the act contracted to be done is itself wrong, the employer is liable, not upon the principle of respondeat superior, but as a co-trespasser.
Crisler v. Ott, 72 Miss. 166, 16 So. 416.
One negligently failing to acquaint himself with the real boundary line of his own land, who employs another, though an independent contractor, to cut trees, near the line, on land which he points out as his own, but which trees turn out to be beyond the line and on the land of a third person, is a negligent co-trespasser and liable for the statutory penalty for cutting such trees.
Crisler v. Ott, supra.
The actions of the parties show that it was the servants of appellee who cut these trees and he so recognized them as such and not an independent contractor.
See Hinton v. Pearson, 142 Miss. 50, 107 So. 275; Mallinger v. Webster City Oil Co. (Iowa), 234 N.W. 254, 257, cited in Re Murray (Me.), 75 A.L.R. 724; Kelley's Dependents v. Hoosac Lbr. Co., 95 Vt. 50, 113 A. 818; 14 R.C.L. 67, 68.
An actual tender in court though unaccepted entitles the plaintiff to recover, in any event, the amount of the tender, and his failure to recover more has no other effect than to cast him in costs; the issue thereafter is not whether the recovery shall be less but only whether it shall be more than the tender; and, in consequence, the tenderee would have a right to receive and withdraw the money or other thing tendered upon order on motion therefor, even before trial.
Sims v. Hardin, 132 Miss. 137, 95 So. 842; Ahrens v. Fenton (Iowa), 115 N.W. 233; Hardegree v. Riley (Ala.), 122 So. 814; Griffith's Miss. Chancery Practice, Secs. 522-526; 26 R.C.L. 652; 62 C.J. 684, Sec. 67; 62 C.J. 697, Sec. 100.
Roberson Luckett, of Clarksdale, for appellee.
Trespass must be tantamount to willfulness.
Therrell v. Ellis, 83 Miss. 494, 35 So. 826; Mississippi Code of 1930, Sec. 3411.
The trespass was committed by the servants of an independent contractor.
Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Cook et al. v. Wright, 177 Miss. 644, 171 So. 686; Crisler v. Ott, 72 Miss. 166, 16 So. 416; Crosby Lumber Manufacturing Co. v. Durham, 181 Miss. 559, 179 So. 285; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Hinton v. Pearson, 142 Miss. 50, 107 So. 275; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191, 193; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Werner Sawmill Co. v. Northcutt et al., 161 Miss. 441, 134 So. 156; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315; Planters' Package Co. v. Parsons, 153 Miss. 9, 120 So. 200; Regan et al. v. Foxworth Veneer Co., 178 Miss. 654, 174 So. 48; Seward et al. v. West, 168 Miss. 376, 150 So. 364; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Hemingway's Code, Secs. 2415-17; 27 Am. Jur. 483.
If the trespass was committed by a servant of Flowers, then it was beyond the scope of the servant's employment.
Clay v. Postal Telegraph Co., 70 Miss. 406, 11 So. 658; Planters' Package Co. v. Parsons, supra.
The unaccepted tender made by appellee as to compensatory damages is no evidence of liability.
Counsel says that because the appellee tendered the sum of $92.50 into court, then the county court committed error in not, by a judgment, directing the clerk to pay the amount tendered to the appellants. There are several answers to appellants' contention: (a) The appellants did not accept the tender. (b) They did not appeal from the judgment of the county court awarding them the sum of $47.07, the value of the trees. Therefore, that feature of the judgment stands. (c) The tender was made in accordance with Section 563, Code of 1930.
Appellants Richardson and Dreaden brought this action against appellee Flowers in the county court of Coahoma County to recover the statutory penalty of $15 a tree for thirty-six trees and also the actual value thereof set at $180, which they charge were knowingly and wilfully cut and removed from their land by Flowers and his employees. Flowers plead the general issue and tendered with his plea the sum of $96.67 as constituting the value of the trees and $4.55 accrued costs up to that time. By agreement the county judge tried the case sitting as judge and jury and rendered a judgment in favor of Richardson and Dreaden for the statutory penalty amounting to $540, and in addition the actual value of the trees found by the judge to be $47.07. From that judgment Flowers appealed to the circuit court. There was no cross-appeal by Richardson and Dreaden.
The evidence showed without conflict that the trees were cut and removed from Richardson and Dreaden's land; that Flowers employed McVey, a sawmill man, to cut and remove and saw into lumber the trees on his land, agreeing to furnish part of the means of transportation, for which he was to pay him $7 per thousand feet. McVey employed others to do the actual cutting and removing of the trees. The evidence showed that he knew where the line was between the lands and so did his employees, and that without the consent or knowledge of Flowers got on Richardson and Dreaden's land and cut and removed thirty-six trees therefrom. There was no substantial conflict in the evidence. The land of Flowers and that of Richardson and Dreaden adjoin. The dividing line was plainly marked by monuments and in addition by tree blazes.
The circuit court rendered a judgment reversing the judgment of the county court as to the statutory penalty alone, leaving the judgment of the county court as to the actual value of the trees standing. From that judgment Richardson and Dreaden prosecute this appeal.
They assign as error the action of the circuit court in denying them the statutory penalty and also in failing to render judgment for the amount tendered in the county court by Flowers instead of $47.07. For the first time Richardson and Dreaden on this appeal assign as error the action of the county and circuit courts in allowing as the actual value of the trees $47.07 instead of the amount tendered by Flowers in the county court. The statutory penalty is not allowable except in cases of wilful trespass or its equivalent gross negligence to take proper care and caution to avoid such trespass. Therrell v. Ellis, 83 Miss. 494, 35 So. 826; Murphy v. Seward, 145 Miss. 713, 110 So. 700. Flowers defended on the ground that the trees were cut without his consent, express or implied, and the evidence so showed. Richardson and Dreaden contend that even though that be true Flowers is liable for both the actual value and the statutory penalty because the trees were cut by McVey and his employees as the servants of Flowers. On the other hand, Flowers answers that position with the contention that McVey was an independent contractor and furthermore if the servant of Flowers the latter had no part in the trespass and therefore he was not chargeable with it. We do not pass on the independent contractor contention. We hold under the authority of Planters' Package Co. v. Parsons, 153 Miss. 9, 120 So. 200, that Flowers is not liable for the statutory penalty for the trespass of his servants committed without his knowledge or consent. In other words, their trespass was not his trespass, unless it was either expressly authorized or was caused by his negligence.
Richardson and Dreaden are barred from raising the question as to the tender made in the county court because it is raised here in this court for the first time. A question not raised by an assignment of error in the circuit court on appeal from the county court cannot be raised for the first time on appeal to the Supreme Court. State v. Carraway, 160 Miss. 263, 134 So. 846.
Affirmed.