Central Coal & Coke Company v. John Henry Shoe Company

• Decision Date: 04 May 1901
• Citation: 63 S.W. 49,69 Ark. 302
• Parties: CENTRAL COAL & COKE COMPANY v. JOHN HENRY SHOE COMPANY
• Court: Arkansas Supreme Court

63 S.W. 49

69 Ark. 302

CENTRAL COAL & COKE COMPANY v. JOHN HENRY SHOE COMPANY

Supreme Court of Arkansas

May 4, 1901

Appeal from Little River Circuit Court, WILL P. FEAZEL, Judge.

STATEMENT BY THE COURT.

The John Henry Shoe Company, a corporation organized under the laws of Louisiana, and Abbie McShea were the owners of certain timber lands in this state. In 1895 Gus Less and S G. Watkins, partners doing business under the firm name of Gus Less & Co., wilfully and without right entered upon these lands, and cut timber therefrom, and converted it into railway ties. They afterwards sold the ties to the Central Coal & Coke Company, a Missouri corporation, engaged, among other things, in the business of buying and selling ties. The Coal & Coke Company took possession of the ties near where they were cut, and paid Less & Watkins for them, and then shipped the ties out of the state.

Afterwards the Shoe Company and Abbie McShea brought this action against the Coal & Coke Company for conversion of the ties and to recover damages. There was a verdict and judgment in favor of plaintiffs for the sum of $ 2,000, from which the defendant appealed.

Judgment reversed.

W. H Arnold and Estes & King, for appellant.

The court erred in instructing the jury that appellee could recover the market value of the ties, irrespective of the motive or knowledge or good faith with which they were cut from the land or purchased by appellant. Upon the difference of the rules as to wilful and unintentional trespassers, see 55 Ark. 307; 37 Mich. 332; S. C. 7 Am. Rep. 124. In the latter case only actual damages are recoverable. 32 Oh. St. 571; S. C. 30 Am. Rep. 630; 32 Mich. 311; S. C. 7 Am. Rep. 654; 3 Suth. Dam. 376; Cooley, Torts, 56. But the former rule cannot apply where an innocent purchaser has come into the case. 32 Oh. St. 571; S. C. 30 Am. Rep. 629. It was error to admit the hearsay testimony of Harkness and Watkins.

Scott & Jones, for appellees.

Appellees were entitled to the value of the ties at the date of their manufacture, and interest thereon, since they were made by wilful trespass. 44 Ark. 210; 55 Ark. 307; 65 Ark. 448; 106 U.S. 432; 55 S.W. 392; 9 Ark. 46; 33 N.E. 391; 23 Wend. 285; 3 Const. 379; 32 A. 714. The objection to the evidence of Watkins, being only general, cannot be sustained if any portion of it is proper. 65 Ark. 106; 25 Ark. 380; 48 Ark. 177.

OPINION

RIDDICK, J., (after stating the facts).

This is an action for damages for the unlawful conversion of railway ties. The evidence makes out a very clear ease of willful trespass on the part of Less & Watkins, from whom defendant purchased the ties. Less & Watkins had notice that the land from which the ties were cut belonged to the plaintiffs, and yet, without permission or authority from them, entered upon it with a large force of men, and cut the timber and converted it into ties. Under these circumstances, it is clear that, being willful trespassers, they were liable to the plaintiffs for the full value of the ties at the time of the sale and conversion, and, had they been sued, would have been entitled to no reduction on account of labor and expense. The rule would have been different had they been innocent of intentional wrong, the reasons for which are fully explained in the opinion in a recent ease decided by this court. Eaton v. Langley, 65 Ark. 448, 47 S.W. 123. But they were not innocent, and the question here for decision is whether the defendant, who purchased the ties from these trespassers, and then converted them to its own use, is entitled to any reduction in the damages on account of the increase in value caused by the work and labor of the willful trespassers. We must answer this question in the negative. The timber belonged to plaintiffs. The title to it was not changed by the trespass, or the conversion to cross ties. It still belonged, in its improved shape, to the plaintiffs. Had Less & Watkins, who knowingly and wrongfully put labor upon these ties, been sued, they, as before stated, would have been entitled to no allowance or reduction of damages on account of the labor expended or value added to the timber, and could convey no such right to the Coal & Coke Company. Admit that the company was an innocent purchaser; still it purchased property belonging to plaintiffs from those having no right to sell, it converted this property to its own use, and plaintiffs were by this conversion damaged to the extent of the value of the property at the time of the conversion.

The company, it will be noticed did not perform any work and labor on these ties, nor add any value to them. Under these circumstances, we think the circuit judge correctly ruled that the measure of damages was the value of the ties at the time and place they were converted by the defendant company, with interest at 6 per cent. from date of conversion. Wooden-Ware Co. v. United States, 106 U.S. 432, 27 L.Ed. 230, 1 S.Ct. 398; White v. Yawkey, 108 Ala. 270, 54 Am. St. Rep. 159, 19 So. 360; Powers v. Tilley, 87 Me. 34, 47 Am. St. Rep. 304, 32 A. 714; Glaspy v. Cabot, 135 Mass. 435.

The next contention is that the judgment should be reversed because it is said the trial judge admitted hearsay testimony tending to show the number of ties taken from the lands of plaintiffs. The only question of fact in the case about which there was any room for doubt was as to the number of ties which were taken by Less & Watkins from the lands of plaintiffs and sold to defendant. On this point the circuit judge permitted the plaintiffs to introduce the deposition of one Harkness, who testified...