Planters' Package Co. v. Parsons

• Decision Date: 04 February 1929
• Docket Number: 27342
• Citation: 120 So. 200,153 Miss. 9
• Parties: PLANTERS' PACKAGE CO. v. PARSONS. [*]
• Court: Mississippi Supreme Court

120 So. 200

153 Miss. 9

PLANTERS' PACKAGE CO. v. PARSONS. ^[*]

No. 27342

Supreme Court of Mississippi

February 4, 1929

Division B

1 TRESPASS. Defendant's reliance upon fence as boundary line, when purchasing land, precluded recovery of statutory penalty for cutting trees within fence on plaintiff's land.

Defendant's reliance upon fence as being correct boundary line, when purchasing land, precluded recovery of statutory penalty for cutting trees within fence on plaintiff's land.

2. TRESPASS. That defendant's employee thought trees on plaintiff's land should be cut, without reasonable foundation for thinking so, was no defense.

That defendant's employee thought trees outside defendant's fence on plaintiff's land ought to be cut, without a reasonable and prudent foundation for thinking so, was no defense for cutting trees.

3. MASTER AND SERVANT. Employee's cutting trees on plaintiff's land, in violation of instructions, did not render defendant employer liable for statutory penalty.

Where defendant employer gave employee positive directions to cut trees only within fence, but employee cut trees on plaintiff's land beyond fence, employee's unauthorized act did not render employer liable for statutory penalty.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Copiah county, HON. E J. SIMMONS, Judge.

Action by the Planters' Package Company against C. H. Parsons. From the judgment, plaintiff appeals. Affirmed.

Affirmed.

Wilson Henley, for appellant.

Plaintiff was entitled to a peremptory instruction on the question of statutory penalty. Such instruction was requested and refused. As heretofore stated, every element of this case is undisputed, except the question of the degree of care used in attempting to avoid the trespass, and it is our position that the facts in respect to this feature of the case are undisputed, and that the peremptory instruction should have been given.

We think that the correct rule has been announced by this court in Keirn v. Warfield, 60 Miss. 807.

M. S. McNeil, for appellee.

That the trees were cut on the plaintiff's land; that they were cut without the plaintiff's consent; that they were cut within twelve months before the suit was commenced; that they were cut by the defendant or his agents, acting within the scope of their employment, there is no dispute. The only question for the decision of this court is whether or not there was a trespass committed by appellee in wilful disregard of the rights of the appellant. See Therrell v. Ellis, 83 Miss. 494; Rector v. Outzen, 63 Miss. 254; Keirn v. Warfield, 60 Miss. 799; Mhoon v. Greenfield, 52 Miss. 434; McCleary v. Anthony, 54 Miss. 708; Perkins v. Hackleman, 26 Miss. 41.

Counsel in their brief make this statement: "There is not a dispute anywhere in this record with reference to the degree of care which Parsons used to avoid cutting the forty-acre tract of timber, and a peremptory instruction should have been given either to the plaintiff or defendant on the question of statutory damages."

In the light of the foregoing authorities we do not agree with counsel on this proposition. We think that under the authorities cited, and after the introduction of the evidence on behalf of the plaintiff, showing the cutting was by accident, inadvertence, mistake, or whether or not Parsons used reasonable care and caution, and this was fairly submitted to the jury under all of the instructions.

OPINION

GRIFFITH, J.

Appellant sued appellee for actual damages and for the statutory penalty on account of the unauthorized cutting by appellee of three hundred and sixty trees on the lands of appellant. The parties were adjoining proprietors, the land owned by appellee having for some years been known as the McLemore place. This place had, for a long time, been under fence, and, when appellee purchased the property, he was given to understand that the line separating his land from that of appellant was the fence aforesaid; and, when he sent his employees to cut the timber on his land, he instructed them to cut all the timber within his fence, and the employees who did the cutting admitted that this was the order given and no other; but the employees of appellee, in pursuing the work, cut not only the timber inside the fence, but went beyond and cut twelve trees outside.

It now turns out that the fence line in question was not the true land line, but was located, at the place of the trespass, over on the land of appellant.

The record, as it has been brought before us, is in an unsatisfactory condition, so much so that repeated reviews of it, both in chambers and in consultation, have been necessary in order to arrive at a definite and dependable conclusion. This has been brought about by the fact that the locations of boundary lines, fences, and landmarks were involved in sharp issue between the parties, and nearly all the testimony in the case was placed before the trial court and jury by the use of a map or diagram, and yet this diagram is not a part of the record. Typical of what effect this omission has had in making a large and important part of the record practically unintelligible are the following question and answer in the testimony of Mr. Wilson, the general manager of appellant company:

"Q. Did you notice the fences around there? A. Yes, sir. I have been over them both carefully. All the fences I saw there were built by Mr. Graves; I understood they were built by him. A little piece of fence had been built by Mr. Listen Strong. A fence run along here and came along within, say two hundred or one hundred fifty yards of this, up through...