21 Mo. App. 660 | Mo. Ct. App. | 1886
delivered the opinion of the court.
, This action ivas originally brought on the twenty-third day of November, 1881, by the plaintiff Holliday, as administrator of the estate of Louis V. Bogy, deceased, and by the other plaintiffs joining with him as heirs at law of Louis Y. Bogy, deceased, to recover damages for the trespass of cutting and carrying away timber from certain lands, of which it was alleged the said Louis Y. Bogy, in his lifetime was the owner, and of which the plaintiffs were, at the time of the taking, the owners. On the twenty-fourth of September, 1883, the plaintiffs filed an amended petition setting up the same trespasses, but claiming treble damages, and framing their allegations so as to state a case within the statute giving treble damages for cutting down or carrying away timber. Rev. Stat., sect. 3921. The answer was a general denial. There was a trial before a jury and a verdict against both defendants in the sum of five hundred and fifty dollars, upon which the court gave judgment, in conformity with the prayer of the petition, in the sum of
I. There was a demurrer because of the joinder of Holliday as party plaintiff, which the court overruled. This does not present any question for review, because the defendants waived the objection by pleading over.
II. The action, being upon a statute for a penalty or forfeiture where the action is given to the party agrieved, it was subject to the limitation of three years prescribed in section 3231, Revised Statutes.
In view of the filing of the amended petition, it became a material question whether this period of limitation reached back three years from the date of the filing of the original petition, or from the date of the filing of the amended petition. The court refused an instruction offered by the defendant to the effect that the jury should not take into consideration any timber taken prior to September 24, 1880, which was three years prior to the filing of the amended petition, but gave an instruction which authorized them to give damages for the value of all timber cut and carried away at any time during three years prior to the twenty-third day of November, 1881, the date of the filing of the original petition. If the amended petition amounted to nothing more than a different or more formal statement of the same cause of action, these rulings were correct; but if it set up a substantially different cause of action, then the filing of it was equivalent to the bringing of a new action, so far as regards the running of the statute of limitations, and the rulings were incorrect. It is dear beyond any doubt that the amended petition states a different cause of action from the original petition. In Scoville v. Glasner (79 Mo. 449), it is laid down in substance that the test by which to determine whether an amended petition states a new cause of action, is to consider, (1) Whether the same evidence will support both petitions; (2) Whether the same measure of damages will apply to both. In this case neither of these conditions exists. The evi
III. It may be material to consider, in view of another trial, the objection that there was not sufficient evidence to support the verdict as against the defendant Malone. After a careful reading of the record, we have' come to the conclusion that this objection is not-well taken. The evidence tends to show that the defendant Malone and the defendant Jackson were associated together in some way; just in what way, does not appear. But it does appear that Malone was the owner of a saw mill upon Little River, at a point below the land from which the timber was taken ; that Jackson was employed by him to cut and float timber from lands above his mill down to the mill, for which Malone paid him a stated price per thousand. There was some evidence indicating that the teams which Jackson used belonged, in whole or in part, to Malone. One of the defendant’s witnesses described himself as having worked for Malone and Jackson. There was abundant evidence to show that Jackson knew that he was taking timber from land which did not belong to him, and that he determined to take his chances of prosecution and let the real owner of the land prove his title. Malone’s own testimony, also, shows that he knew that Jackson was cutting timber from the land in controversy; but he sets up as a defence that he directed Jackson not to cut timber from that land until he, Jackson, had procured the-consent of Colonel Kitchen, whom he, Malone, understood to be a part owner of the land. He testified as follows: “Kitchen told me that he and Bogy owned twenty thousand acres of land along Little River. I never had any knowlege of Jackson cutting timber on these lands except what I heard from others. I would not let him take the team up the river after McYey left,
IN. We do not see any error in excluding from the jury a certified list of swamp lands held by the county of Stoddard, in 1867, and also a deed from Stoddard county by the sheriff to Louis Ringer and D. S. Crumb. As Ringer subsequently conveyed to the late Louis N. Bogy, these documents would have no tendency to show title in Stoddard county at the time. of the trespasses complained of, which were long subsequent to the conveyance from Ringer to Bogy. This evidence seems to have been offered on the theory that the sheriff’s deed, being founded on a general execution against swamp lands belonging to the county, is void, under the decision in The State ex rel. v. New Madrid County (51 Mo. 82). We can not investigate in this collateral proceeding, whether the deed in the particular case was void or not. It recites a judgment rendered by the circilit court of Stoddard county in favor of Ringer and against the county of Stoddard for $1136.80. The judgment was a judgment of a superior court of record, possessing a general jurisdiction, and in a collateral proceeding it must be presumed to have been properly rendered, no want of jurisdiction being affirmatively shown. It, therefore, pronounced the law of the case and can not ;be overturned in this proceeding, especially for the purpose of defeating ah otherwise meritorious cause of action against naked trespassers.
N. The court committed no error in excluding the admission made by the plaintiff under the statute, intended to obviate a continuance, that McNey, if present, would testify that he had an agreement or contract with ■Col. Kitchen, some time during the year 1877, to cut timber from the land described in the petition, for which he was to pay Kitchen, through Kirby and Malone, at a stated rate per thousand feet, and that he, McNey, told
YI. Col. Kitchen, according to Ms testimony, parted with his interest in the land to the Bogy heirs in 1879, but in what part of 1879 he does not state. A witness-named Taylor testified that in the year 1879 he was working for Jackson and Malone, from June or July until December; that in the fall of that year he went to see Col. Kitchen, for Jackson, about the timber where McYey had been cutting; that Kitchen told Taylor that if Malone could stand good for the pay, they could cut the timber ; that the witness saw Malone pay Kitchen somewhere near thirty-five dollars at one time. On cross-examination the witness admitted that he could not say whether it was in the year 1878 or 1879 that this happened. This testimony, if true, was very material, for it would tend to show that Jackson had a parol license from Kitchen to cut timber on the land before Kitchen parted with his interest in the land to his co-owners, and as a state of things shown to exist is presumed, within certain limits, to continue, in the absence of all showing to the contrary, it might be inferred that the defendants acted under the belief, founded upon reasonable grounds, at the time when they did cut the timber, that this license was still unrevoked. While the trial was in progress, the following incident, as recited in the bill of exceptions, occurred, relating to this testimony of Taylor : “ While the defendant Malone was testifying, and when
"VII. Some observations seem to be called for upon the instructions given and refused beyond those which have already been made upon the instructions relating to the period of limitation. We do not see that the court erred in refusing these instructions which were tendered by the defendant and refused. We do not understand that it is incumbent upon the court, in instructing the jury in an action of this kind, to embody in the instructions the element of wilfulness, as is argued by the learned counsel for the defendants. The statute is careful to exclude this, and to state a ground of recovery broad enough to include negligence as well as wilfulness; and we think it sufficient that the jury are instructed substantially in the terms of the statute. But the jury were not instructed in this case in all the elements of the statute upon which the right to recover treble damages is predicated. The statute, in section 3921, defines the ground of action, and, in section 3924, states what shall be a good defence to the action so far as to reduce the recovery to single damages. The provision of section 3924 is in the nature of a proviso to section 3921, and should manifestly be so read. Reading the two sections together, so far as they apply to this case, their language is as follows : “ If any person shall cut down, injure, or destroy, or carry away, any tree placed or growing for use, shade, or ornament, or any timber rails or wood standing, being, or growing on the land of any other person, * * the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed, or carried away, with costs.” Rev. Stat., sect. 3921. “ On the trial of any action or prosecution brought under this statute, if it shall appear that
It is perceived that the former of these sections states the offence to be the cutting down, carrying away, etc., of timber from the land of another person, and that the latter relieves the trespasser from liability, except for single damages, where he had probable cause to believe that the land on which the trespass was committed, or the thing taken, carried away, etc., was his own. Applying the statute to the evidence in this cáse, the plaintiffs made out a prima facie case of liability by showing that the defendants had cut and removed the timber from the lands belonging to the plaintiffs. The defendants made out a prima facie defence, if they succeeded in showing that, in cutting and removing the timber, they acted under a parol license from Kitchen, a part owner of the land; for siich a license would make the timber removed the defendants’ timber, within the meaning of section 3924.
Now, the principal instruction upon which the case was put to the jury reads as follows: “The court instructs you, gentlemen of the jury, that if you believe from the evidence that the plaintiffs were, on the twenty-third day of November, 1881, and for more than three years previous thereto, the owners of the land described in plaintiffs’ petition, and that defendants, without authority from plaintiffs, and without having any interest or right in the land in question, or to the timber standing on said lands, did enter upon said lands at any time during three years previous to the twenty-third day of November, 1881, and cut down or cause to be cut down, and carry away or cause to be carried away, timber or wood growing on said lands, then you will find a
. This instruction, it is perceived, leaves out the element contained in section 3924, Bevised Statutes, of the defendants having reasonable cause to believe that the timber was their own. Concerning this instruction it must be, therefore, said, that a verdict in accordance with it is not a sufficient predicate on which the court could enter a judgment for treble the damages. The action is penal in its character, and where there is any evidence tending to relieve it of its penal character and to make out a case for the recovery of single damages only, that element must be embodied in the instructions given, in order to warrant the trebling of the damages. The giving of the instruction was not of itself error ; but it was error, after putting the case to the jury upon the instruction, to treble the damages.
The judgment will be reversed and the cause remanded. It is so ordered.