59 A.2d 723 | Conn. | 1948
The plaintiff brought this action under the provisions of 5992 of the General Statutes to recover damages for the cutting of trees on his property, alleged in the complaint to have been done by the defendant; the case was tried to the jury, and a verdict was rendered for the plaintiff. The defendant has appealed.
Section 5992 provides: "Any person who shall cut, destroy or carry away any trees, timber or underwood, standing or lying on the land of another or on town commons, without license of the owner, and any person who shall aid therein, shall pay to the party injured one dollar for each tree or pole under one foot diameter; and for each tree of a diameter of one foot or more three times its value; but, when the court shall be satisfied that the defendant was guilty through mistake and believed that the timber was growing on his own land, it shall render judgment *595 for no more than its true value." The defendant was rightfully engaged in lumbering operations on land called the Hanson tract, which adjoined that of the plaintiff. The plaintiff claimed to have proved that employees of the defendant cut twenty trees on his property, twelve of which had a diameter of one foot or more. The defendant contended, among other things, that the trees in question did not stand on land of the plaintiff; and that if his employees did cut trees on the plaintiff's land their acts in so doing were not authorized by him.
The defendant assigns error in certain rulings on evidence. The plaintiff called a civil engineer as a witness and offered in evidence a map prepared by him which the court admitted. The map indicated that the plaintiff's land was bounded by a stone wall on the side where the Hanson tract lay. In an examination preceding the ruling of the court, the witness testified that the boundary lines of the plaintiff's land as they appear on the map were placed there on the latter's representations. It also appeared that the witness had found at the office of the town assessors a map based on an aerial survey on which the plaintiff's name appeared as owner of the land and which depicted the stone wall, and that he had ascertained that the plaintiff had paid taxes on the property. It was not disputed that the plaintiff owned land adjoining the Hanson tract, but one of the principal issues in the case was the location of the boundary between the two properties. A map is the pictorial representation of the testimony of the witness through whom it is offered in evidence. 3 Wigmore, Evidence (3d Ed.) p. 174; and see Petroman v. Anderson,
The son of the defendant, a witness called in his behalf, who had been on the Hanson lot in connection with the lumbering operations, was asked, "And do you know if anybody directed you or told you where and when to cut?" Objection was made on the ground that the testimony would be hearsay, and sustained. The plaintiff before us admits that the ground of objection was unsound but argues that the error was immaterial and harmless because the acts of defendant's employees had been ratified by him. The question, if the witness had answered that he knew of no such direction, would have been relevant and of some weight in support of the defendant's claim that, if his employees cut trees on the plaintiff's land, it was not by authority from him. The plaintiff claimed to have proved ratification, but it does not appear that this was a conceded or undisputed fact. In this ruling also there was error. *597
As a new trial must be ordered, we consider certain other claims of error involving matters which may then arise. The defendant on cross-examination was asked whether he personally cut the trees in question and answered that he did not. He was then asked whether his men cut the trees. Objection was made on the ground that, as the complaint alleged that the trees were cut by the defendant, evidence that they were cut by his employees was not admissible, but the court admitted the question. The objection was apparently based on 118 of the Practice Book, which provides in part: "Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facto which it is intended to prove. Thus an act or promise by a principal, other than a corporation, if in fact proceeding from an agent known to the pleader, should be so stated; . . .," We have in two instances treated this rule as requiring that, where a plaintiff fails to allege agency, evidence of it is inadmissible, if timely objection is made. Porter v. Ritch,
The defendant also assigns errors in the charge, but as no objection was made to it at its conclusion, these assignments are not properly before us. We, however, discuss one of them because it involves a question likely to arise on a new trial. The trial court instructed the jury that, if they found the issues for the plaintiff, it was for them to decide how many trees less than one foot in diameter and how many over that diameter were cut, that they were to award damages upon the basis of $1 for each of the former, and that they were then to find the fair market value of each of the latter and award three times that value. The defendant contends that *599
the tripling of the sum found to be the value of the trees over one foot in diameter was not the function of the jury but of the judge after the jury had returned their verdict. Such a construction of the statute would be impracticable. When a plaintiff claims that trees under one foot in diameter and also larger trees were cut and there is a dispute as to the number of each, or as to the value of the larger ones, the court, in the absence of a special verdict, which the statute does not require, would have no basis upon which it could triple the value of the latter. Moreover, if the defendant claimed that he acted under such a mistake as under the statute would preclude tripling the damages, the issue so presented would be one within the proper function of the jury to determine. The word "court" may include the jury as a constituent part. Miles v. Strong,
The defendant also claims before us that the statute applies only where the defendant personally cut trees and no recovery could be had against him on account of trees cut by his agents or employees. While the report of the case of Avery v. White,
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.