Abbott v. Sumter Lumber Co.
| Decision Date | 04 November 1912 |
| Citation | 76 S.E. 146,93 S.C. 131 |
| Parties | ABBOTT v. SUMTER LUMBER CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; R. E Copes, Judge.
"To be officially reported."
Action by S. R. Abbott against the Sumter Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Lee & Moise, of Sumter, for appellant. L. D. Jennings, of Sumter for respondent.
This was an action by the plaintiff against the defendant for damages, actual and punitive, alleging unlawful trespass upon the lands of plaintiff by defendant, its agents and servants by cutting and removing timber without authority after notice and in willful violation of plaintiff's rights. The defendant, by answer, denied this, and alleged the timber was cut by T. T. Stack, an independent contractor, for whose acts the defendant was in no wise responsible.
The case was tried before Judge Copes and a jury in November 1911, and resulted in a verdict for the plaintiff for $100 actual damages and $200 punitive damages. It was shown on the trial that Dr. Abbott, who was the husband of the plaintiff (and who is now dead, and plaintiff claims under him), conveyed certain pine timber upon two tracts of land which plaintiff alleges is the land trespassed on, reserving, however, certain timber on certain portions of the land, describing the portions reserved. The reserved portions lay near the farmhouse of Dr. Abbott, and was reserved by him to use for certain purposes. The conveyance by Abbott to McLaurin gave McLaurin, his heirs and assigns, the right to enter upon the lands, cut and remove timber so conveyed, and construct roadways, etc., for that purpose. McLaurin purchased this timber for the defendant, and later on conveyed to them. After this conveyance from McLaurin to defendant, Jackson, who was connected with the defendant company, cut and removed some of the timber reserved by Dr. Abbott. This timber was paid for before Dr. Abbott's death. Later on, after Abbott's death and when plaintiff came into possession of the lands, Stack entered the lands under a contract with defendant company for the purpose of removing the timber owned by the defendant company, and, instead of cutting that alone, he cut some of the timber specifically reserved by Dr. Abbott--63 long and short leaf pines. After verdict was rendered for plaintiff, the defendant appeals, and the first question for consideration is whether his honor erred in not ruling that the plaintiff in proving her actual damages was not restricted to the commercial value of timber.
We think he committed no error, and that the proposition is almost too absurd to be treated seriously. To say that a person can enter upon the lands of another, and cut down his shade trees and trees planted, selected, cultivated, and grown or left there growing in the original state for certain purposes of use, ornament, or beauty, and, when he destroys them, escape by paying what the commercial value to a lumber dealer at the nearest market is, is untenable. In the destruction of the shade trees irreparable wrong might be done, the growth of a thousand years is ruthlessly destroyed, and the owner can never expect during his lifetime to see them restored, and take his ease and peace under his own shade trees. The law on this is elementary, and holding to the contrary the contention of the defendant and can be found in the text-books. By reference to the testimony of Mrs. Abbott it will be seen that there was a greater value to the trees than mere commercial value, and that alone would not compensate.
The next question is, Was there any testimony tending to show that the plaintiff was entitled to any punitive damages in view of the testimony in the case and repeated decisions of the court in reference to the jury determining all issues of fact? We cannot believe that the very astute counsel of appellants are serious in these exceptions, and the exceptions raising this question are overruled.
The last and most serious question raised is that his honor erred in withdrawing from the consideration of the jury the defense that the trees were cut down by an independent contractor for whose acts the defendant was not responsible. He assigned the following reason for so ruling: We think his honor, Judge Copes, was right, and the exceptions raising this question should be overruled. Stack was the agent, in our opinion, of the defendant, and it does not matter what were the terms of his contract with the defendant. The plaintiff was not a party to it, and in no manner bound by it. Dr. Abbott conveyed certain timber on certain lands, and gave the party purchasing it, or his assigns, the right to enter on these lands and cut and remove the timber sold by him, and no other timber than that which he had sold. He had every reason to assume that he was dealing with responsible parties, and who in good faith would carry out that contract. He had no idea that he was by this conveyance giving the right to McLaurin to hawk it about as if it was a chattel mortgage, the right for McLaurin, and the persons he might convey to, the privilege for any irresponsible person, tough, or one who was bankrupt in purse and morals, or any other person whomsoever, to enter on his lands, depredate, trespass, and injure his property, cut down and remove timber that was not covered and which was received and converted by the defendants, along with the timber they had actually purchased, and appropriated by them, and then coolly to be informed by the defendants that they were not responsible because the person they had contracted with, and who entered the land by reason of the grant to them by Dr. Abbott, was made by them an independent contractor and in all probability for the very purpose of committing this wrong, and relieving the defendants from any liability committed by the person employed and sent in by them. In other words, the defendant says: '
There was no privity of contract between the Abbotts and Stack, and the testimony shows, by whatever name you call it, he entered the lands of plaintiff under a contract with the defendant and he was their agent, and they are bound by his acts, whether they thought they were dealing with him or not as an independent contractor, as far as plaintiff is concerned. The defendant had the right to contract with any one to enter their lands and cut and carry off what they had purchased, but it was their duty to observe care in the selection of the person they sent in for this purpose; that he execute his duties in a lawful manner, and not injuriously affect the interest of the plaintiff. Stack could only enter on lands here under authority derived from defendant. There is no pretense that he had permission from plaintiff. The defendant could only authorize him to cut and remove timber as by terms of their conveyance from Abbott. It was their duty to explain carefully what their rights were, and instruct Stack what he could do, and how far he could go, and what part of the lands they were entitled to remove timber from, and it was their duty to see that he did not exceed defendant's rights in the premises. They cannot repudiate his acts and his agency when they were responsible for his presence there. Without defendant's permission and through defendant's instrumentalities, he could not be there, and they are estopped from repudiating his agency, and asserting he was an independent contractor.
The case of Rogers v. Florence Railroad, 31 S.C. 378, 9 S.E. 1059, does not control this case, for the testimony here clearly establishes agency, and not independent contractor and this case should be controlled by Rucker v. Smoke, 37 S.C. 380, 16 S.E. 41, 34 Am. St. Rep. 758. Chief Justice McIver therein says: ...
To continue reading
Request your trial