This is an action for damages for timber trespass. Plaintiffs recovered a judgment for treble damages pursuant to ORS 105.810 and defendant appeals.
Defendant concedes the trespass, but contends that plaintiffs are entitled to recover at most double damages, as provided in ORS 105.815. The trespass was committed by Samuel A. Agnew, through an agent. Agnew died before the action was commenced and the defendant is administrator of his estate. The question, which was raised on the trial, is whether ORS 105.810 is a penal provision; and, if so, whether it can be enforced against the estate of a deceased wrongdoer.
We have two statutes to consider. ORS 105.810 reads:
“Except as provided in ORS 477.090, whenever any person, without lawful authority, wilfully injures or severs from the land of another any produce thereof or cuts down, girdles or otherwise injures or carries off any tree, timber or shrub on the land of another person, * * * in an action by such person * * * against the person committing such trespasses if judgment is given for the plaintiff, it shall be given for treble the amount of damages claimed, or assessed for the trespass. In any such action, upon plaintiff’s proof of his ownership of the premises and the commission by the defendant *141 of any of the acts mentioned in this section, it is prima facie evidence that the acts were committed by the defendant wilfully, intentionally and without plaintiff’s consent.”
OES 105.815 reads:
“If, upon the trial of an action included in OES 105.810, it appears that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, * ° * judgment shall be given for double damages.”
Thus, the legislature has provided that one who wilfully or intentionally cuts down the trees of another, is liable in treble damages, OES 105.810, but, if the trespass was casual or involuntary or the trespasser had probable cause to believe that the land upon which he trespassed was his own, he is liable in double damages, OES 105.815.
In
Kinzua Lbr. Co. v. Daggett et al,
Upon the authority of the
Kinzua Lumber Company
case we said in
Gordon Creek Tree Farms v. Layne et al,
Treble damages under this statute cannot be considered what are sometimes called “accumulative damages,” or “extraordinary” or “statutory-liquidated damages” as we termed them in the Kinzua Lumber Company case; for all such damages may be recovered under ORS 105.815 and any award beyond double damages must, of necessity, be punitive or penal in character. See Fairview Farms, Inc. v. Reynolds Metals Company, 176 FS 178, 189 (D Or).
In
Lane v. Schilling et al,
“ ‘Plaintiff had a right of action, on account of the slanderous words spoken by Rush, for such sum as would compensate her for the injury. This was her cause of action, and this is what was preserved to her by the statute at his death. But she had no personal interest in the question of his punishment. So far as he was concerned, the punitory power of the law ceased when he died. To allow exemplary damages now would be to punish his legal and personal representatives for his wrongful acts, but the civil law never inflicts vicarious punishment.’ ”
See, also,
Stevenson v. Stoufer,
“In short, we think the general rule today with respect to the survival of tort actions against decedents’ estates is that actions essentially for penalties do not survive for the reason that a decedent is beyond punishment, but that actions to recompense or compensate a plaintiff for a harm inflicted upon him by a decedent do survive, for an estate can, and we think should, compensate for injury to the same extent as the decedent had he lived.”
The treble damages provision of ORS 105.810, while penal in character, is not a penalty in the strict sense, for it is not imposed for an offense committed
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against the State.
Huntington v. Attrill,
We have been cited to no case, and have found none, in which recovery of a statutory penalty or statutory punitive damages has been sustained against the estate of a deceased wrongdoer, and we are aware of no decision that a survival statute applies to such a case. The reasons why punitive damages may not be recovered against an estate are the same whether the remedy is sought at common law or under a statute. We think, therefore, that, had the legislature intended that our survival statute should apply to the recovery of treble damages under ORS 105.810, it would have expressed that intention. We hold that the court erred in submitting the question of treble damages to the jury-
In view of this holding, other assignments of error in the brief related to treble damages need not be considered.
A serious question is presented by an assignment of error directed to the court’s sustaining of plaintiffs’ objection to testimony of the witness Herbert W. Crook. Mr. Crook was called by defendant as an expert witness on the value of the timber involved. The timber was located in what is known as the China Creek area of Curry County. From 1940 until 1965 Crook was in the timber business in that county. He testified that he was familiar with timber values in Curry County and particularly in the China Creek area, in the summer and fall of 1964, when the trespass *145 occurred, that he was familiar generally with the quality of the logs coming down from the China Creek area, with timber values throughout the county and with timber prices, and that he had bought logs that came out of the China Creek area from the decedent, Samuel A. Agnew. Before the objection was finally ruled on the witness testified under cross-examination respecting his qualifications as follows:
“Q. Mr. Crook, every piece of timber especially in Curry County varies a great deal in quality, as a matter of fact, within almost a hundred feet, isn’t that correct ?
“A. Yes.
“Q. _ In other words, all of a pocket of timber that will be beautiful peelers and then you will come onto some seraggly wind-blown timber, isn’t that correct?
“A. Well, I wouldn’t say it would vary in a hundred feet.
“Q. No, but I am saying that actually unless you knew the actual piece of timber involved and were acquainted with it, you would hesitate to say what it was worth, wouldn’t you?
“A. I think I have enough knowledge of that area that I could tell you what timber was worth.
“Q. Would you be willing to pay for it on that basis?
“A. No, I’m not buying timber, I’m out of the mill business.”
The witness further testified on cross-examination that in 1964 the difference in price between “number one peelers” and “saw logs laid into the mill” was about $65, and the cross-examination proceeded:
“Q. So, you would be guessing as to anything unless you knew the particular timber involved that could be anywhere from peelers to number three saw logs, wouldn’t you?
*146 “A. Well, you just don’t have one patch of timber all peelers here and a hundred feet away, as you say, all mill logs.
“Q. No, but you have a variance that you are going to have to guess between the difference of sixty-five dollars because you don’t know this particular timber, do you?
“A. I am pretty well acquainted with it, I probably know a great deal more about it than you because I discussed it with Mr. Agnew before he died. He was thinldng at that time of selling it.
“Q. When was that?
“A. It was about ’63, if I remember right.
“Q. Well, this timber that we are involved in here wasn’t owned by Mr. Agnew.
“A. I know it, I am talking about the general area timber.
“Q. Now, the point is, though, that unless you could see the particular timber involved because I think you testified that timber in this area particularly varies according to that which is in a pocket which is protected and gets lots of rain and moisture and that is protected from wind as against the timber which is on ridges and other places such as that?
“A. Well, your high ridges is poor timber, that is conceded by all timber men.
“Q. But, as you sit here today, would you be willing to buy any piece of timber up there on a per thousand-foot basis for so much without looking at it?
“A. Well, can I ask you the same question because you are not in the timber business and I am not in the timber business.
“THE COURT: You cannot ask him a question, simply answer the question if you can.
“A. No, I wouldn’t.
“MR. HAVILAND: All right.”
*147 Mr. Crook further testified that if he were buying a small quantity of timber, perhaps 100,000 feet, which would not “average out,” he would want first to cruise it “to see how much was there and the quality of it.”
The question to which the court sustained objection was: “Do you have an opinion as to the value of stump-age in the China Creek area, the area of this trespass?” The ground of the objection was that “there isn’t sufficient foundation based upon the information of the particular logs and trees involved and it is a question of log value * * The court ruled that the witness was not qualified “to testify as to the value of this particular area.”
The ruling is defended here with the argument that Mr. Crook did not testify that he was familiar with the particular trees involved and that there is a great variance in timber quality throughout Curry County. Were that argument to receive judicial sanction, there might well be instances in which the subject matter of the lawsuit had disappeared and it would be impossible for the injured party to establish its value, as, indeed, this case illustrates. The only witness for the plaintiffs on value was Mr. Ashcraft. He acquired his interest in the claim of the plaintiffs by assignment after the trespass. He had never seen the timber. The decedent built a road through the timber and in that part of the area removed most of the stumps. Ashcraft was able to acquire some knowledge of the quality of the trees the stumps of which were left by examining them. He testified, however, not only to the value of those trees, but also to the value of the other trees which were removed, stumps and all. Had objection been made to the latter testimony, the court would have had to sustain it on the theory advanced to support the objection to Crook’s testimony, and, so far as the record discloses, *148 plaintiffs had no witness who had seen- the trees and was'for that reason qualified to testify to the value of those removed in toto.
That Crook was a competent witness as to stump-age' value in Curry County and particularly in the China Creek area, is not questioned. He had even bought logs that came out of that area from the decedent Agnew, some of whose timber adjoined that of the plaintiffs. Before he took the stand evidence of the quality of the trees involved had been received. He was a competent witness to testify to the market value of those trees or of the logs which they produced, upon being advised of their quality as shown by the evidence, regardless of the fact that he had never seen them. It is- scarcely necessary to cite authority for this proposition. As the court said in
Haynes, Executrix v. Glenn,
197 Va 746, 751,
“As has been said, Fall [a jewelry expert] had never seen the articles in question and testified as to their value from the description which Mrs. Grlenn . gave of them. This method of proving the value of articles which cannot be produced for inspection is frequently used. Such testimony was admissible, its '¡weight being for the court as the trier of fact. 32 C, J.S., Evidence, § 545, pp, 282, 283.” ②
See, also,
Consylman et ux v. Garrett et al,
164 Pa Super 618, 622,
.Plaintiffs say in their brief, that the witness was not asked a hypothetical question. That is true, but defendant’s counsel was. cut off from asking such a question by plaintiffs’ objection and the court’s ruling.
Plaintiffs invoke the rule that determination of the
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qualifications of a witness to testify as an expert is committed largely to the discretion of the trial judge and that discretion will not be disturbed except for abuse,
Miller Const. Co. v. D. M. Drake Co.,
There are other assignments of error, but as the questions may not arise on another trial we need hot pass upon them.
The judgment is reversed and the cause remanded for further proceedings in .conformity with this opinion.