This is a suit for the wrongful cutting, by the Cumberland Telephone & Telegraph Company, of a tree belonging to plaintiff in error, B. A. Shaw. The action was begun before a Justice of the Peace to answer B. A. Shaw in a plea of damages under $500. There was judgment before the Justice for $5; appeal to Circuit Court, trial before jury, and verdict for $7.50; appeal to this Court, and assignment of errors. These assignments of error are five in number. Four of these are as to errors in the refusal of the trial Judge to give specific instructions as requested. As to these the record shows that the request for these specific instructions was made before the Judge had given his charge to the jury, and the request was not resumed after the Judge had charged the jury.
The first assignment of error is this: “The Judge erred in sustaining objections to questions propounded to Mr. Poster Plume, superintendent of the Memphis department of defendant in error’s company, tending to show its ability to pay punitive damages.” Upon this point the record shows that while Mr. Hume was being examined by plaintiff’s attorney he asked his questions as to capital, business, etc., of the defendant company, “tending to show their ability to pay punitive damages,” all of which were ruled out by the Court, whereupon plaintiff’s counsel excepted upon the grounds that he was entitled to prove such facts to enable the jury to estimate punitive or exemplary damages, if they thought such were proper. The • special charges requested by plaintiff and refused by the Court were mainly upon the question of punitive damages, but as we have decided these cannot be now considered, the only remaining question, therefore, is, Were sufficient facts
The facts of the case upon this point were these: The plaintiff, Dr. B. A. Shaw, an old gentleman, eighty years of age, lives, with his wife, on Her-nando Road, some ten miles from Memphis. As he was driving out of his yard on'February 9, 1898, on his way to Memphis, he noticed a gang of four or five linemen at work stringing wires on the telephone poles of defendant company; that the same gang of men had worked the day before on part of his premises, and had cut several limbs and branches off of his trees, and on passing them he stopped and said to them that he did not want them to cut any more of his trees. They said they would not, and he continued on his way to Memphis. On his return in the evening he learned, and upon examination saw, that a large, healthy gum tree had been cut down, which tree was upon his property, and near by was a newly-erected telephone pole of defendant, which could not have been erected as it then was had the tree been left standing. Another witness testified that Mr. Hume, superintendent, admitted that his men had cut the tree.
There was other evidence tending to show that during the plaintiff’s absence these employes of defendant company had begun to cut the tree, and wei’e forbidden to do so by Mrs. Shaw, through a servant, but they paid no heed to the command.
We cannot distinguish this case, in its material
or reason for punitive damages, the pecuniary ability of the wrongdoer may be given in evidence.” Dush v. Fitzhugh,
Other authorities hold that where fraud, malice, gross negligence, or oppression, intervenes, the law blends the interest of society and of the aggrieved individual and gives damages such as will operate as an example or warning to the parties or others to deter them from similar transactions. Cox v. Crumby,
There need not be positive proof of malice or oppression if the transactions or the facts shown in connection therewith fairly imply its existence, and it is left to the jury to look at all the circumstances in order to see whether there was anything in the conduct of the defendant to aggravate the damages. Johnson v. Perry,
Applying these principles to the facts of the case now under consideration, we find that all the essential facts of both the Hunt and Poston case,( upon which liability was predicated, are found in this case. Plere there was prohibition against the trespass and the commission of the trespass in the absence of the owner. Here the employes knew that the owner was absent, and this absence was taken advantage of just as in the Hunt case, the only difference being that in the last case the trespass was committed in the night. Here there was positive prohibition against doing the act, while in
It is suggested, however, that this is a small case, with only $7.50 verdict and judgment; that it is the policy of the law that there should be an end to litigation, with even the doctrine of “ de minimis non curat lex” invoked. It is sufficient reply to these suggestions to say that it is the boast of the common law that the lowest shall have its benefits as well as the highest feel its power, and that consistency must characterize the administration of the law lest error creep into the State. The case is reversed and remanded for new trial under proper instructions.