40 Wis. 393 | Wis. | 1876
The important question arising upon the various exceptions taken by defendants is: Does the statute give the treble damages when the conversion is merely a technical conversion in law, as in the case before us; or was it only intended to apply to cases where some ingredient of willfulness, wantonness or evil design enters into the act? According to the view of the circuit judge, the statute applies to every case of the conversion of logs, timber or lumber floating in any of the waters of this state, or lying on the banks or shores of such waters, or on any island where the same may have drifted; and gives treble damages as the measure of recovery.
Furthermore, this construction of the statute derives support from the decision of the supreme court of Michigan in the well considered case of Wallace v. Finch, 24 Mich., 256, under a strictly analogous statute. That was an action of trespass for cutting timber, under a statute giving treble damages. There had been negotiations by letter for a sale and purchase of the land from which the timber was taken. The plaintiff made an offer to sell the land, which the defendant accepted by letter. There was some delay in the mail, and before the letter accepting the offer reached the plaintiff, the latter sold the land-to another party. All the acts of trespass were committed between the time when the letter accepting the offer w'as mailed to the plaintiff', and the reception by the-defendant of the plantiff ’s letter explaining the delay and announcing the sale of the property to another. And the court, in considering the question whether the statute was intended to apply to the case, makes remarks quite pertinent to the case at bar. The court says: “ It is not pretended that this correspondence, or any contract made by it, embraced any license to "Wallace, or conferred any right upon him to enter upon the land or to take anything from it; and certainly no view can be taken of it which could avail to save Wallace from the legal liability attached to a trespass having no element of willfulness, wantonness or evil design in it. And it is not perceived that it could avail him as any defense against a claim for single damages under the statute in question. The question of treble damages, however, stands on a different principle altogether. When this law gives single damages, it has a single object, and that is to redress the injured party. But when the damages are to be trebled, the object is twofold, namely: to redress the injury done, and also to punish the wrongdoer. No other explanation of these' provisions is possible; and according to well settled rules, when a law is sus
The court refused to charge, as requested, that if the logs got into the boom or reservoir of the defendants, became mixed with their logs unavoidably or through mistake, and were sawed and converted, the plaintiff was not entitled to recover treble damages. According to our view of the statute, the instruction was proper, and should have been given. There are also other instructions which were refused, and which seem to be applicable to the facts as disclosed in the evidence, more especially the fifth, in which the court was asked to charge, in effect, that if the jury found that the defendants sawed the logs in good faith, supposing they had the right so to do, then the plaintiff could not recover treble damages. The learned circuit judge made the case turn entirely
The court below seemed to be of the opinion that unless the facts presented a case for the recovery of treble damages, the action could not be maintained. "We fail to perceive that it would be a violation of any principle of justice or equity to allow him to recover single damages, providing he made out a case entitling him to such recovery. Railing to show an intentional or wanton conversion of his property, such as would entitle him to the increased damages, but showing a conversion in law, why may he not recover the damages sustained, as in an ordinary action of trover? We surely can see no objection to his doing so.
By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.