Brewster v. Link

• Decision Date: 31 March 1859
• Citation: 28 Mo. 147
• Parties: BREWSTER, Respondent, v. LINK, Appellant.
• Court: Missouri Supreme Court

28 Mo. 147

BREWSTER, Respondent,

v.LINK, Appellant.

Supreme Court of Missouri.

March Term, 1859.

1. In actions founded on the “act to prevent certain trespasses,” (R. C. 1845, p. 1068,) the jury can assess single damages only; the jury should assess the value of the property taken or injured; the court will then, if a proper case be made out, give judgment for treble the amount so assessed.

2. The question of “probable cause” is in such cases to be determined by the court.

3. Where the petition contains counts under the statute and at common law, and the jury render a general verdict, the court is not authorized to treble the damages.

Appeal from St. Louis Land Court.

T. Polk, for appellant.

I. The jury could only assess single damages. When damages are to be trebled, it must be done by the court, not by the jury. (1 Cow. 584, 160; 8 Johns. 344; 4 Mo. 564; 7 Mo. 149; 8 Mo. 350; 12 Mo. 511; 1 Mo. 280.) The fourth instruction authorizes the jury to assess treble damages against the defendant. This was error; nor is it any the less error that the defendant prayed a similar instruction, which was also given by the court. The court having given the fourth instruction against the objection of the defendant, he might well ask an instruction putting the same erroneous legal proposition in a shape less prejudicial to his case. The instruction is erroneous for other reasons. The damages were flagrantly excessive.

Bland & Coleman, for respondent.

I. The defendant can not successfully complain of the instruction given on the prayer of the plaintiff. The defendant asked and the court gave an instruction asserting the same proposition asserted in the instruction alleged to be erroneous. The defendant can not allege as error that which was done at his own request and by his own instructions.

II. There is nothing in the record to show that the jury gave a verdict for any thing more than single damages. (George v. Rook, 4 Mo. 149.) The verdict is that the jury “find for the plaintiff and assess his damages at the sum of $100.””” (17 Mo. 465; Labeaume v. Woolfolk, 18 Mo. 514; 24 Mo. 492; 26 Mo. 143.)

RICHARDSON, Judge, delivered the opinion of the court.

This was an action of trespass alleged to have been committed by the defendant on land that belonged to the plaintiff. The petition contains three counts--two of which were intended to be framed on the statute of 1845 to prevent trespasses, and the other is a common law count for entering the plaintiff's close and cutting and carrying away timber, and removing wood and rails. The jury found a general verdict for the plaintiff and assessed his damages at one hundred dollars. The court gave the following instruction at the plaintiff's instance: “If the jury shall believe from the evidence in the case that the fence in question was erected by the plaintiff, and that at the time of the erection thereof he was in the possession of the land upon which it was erected, and had been in such possession for a period of years prior thereto, and that the defendant removed the fence, and that such fence was not upon the land of the defendant, then the defendant is entitled to treble the amount of damages sustained in consequence of such removal, unless the jury shall believe that the defendant had probable cause to believe that the land on which the fence stood was his own.”

The practice is well established that in actions founded on the statute, entitled “An act to prevent certain trespasses,” the jury can only asses single damages; and that when a proper case is made out for trebling the damages, it can only be done by the court; (Lowe & Forsythe v. Harrison, 8 Mo. 350; Walther v. Warner, 26 Mo. 148;) and the court is not authorized to treble the damages assessed by the jury in a general verdict, in a case where the petition contains counts under the statute and at common law; (Lowe & Forsythe v. Harrison, 8 Mo. 350;) or the...