D.L. Fair Lumber Co. v. Weems

• Decision Date: 14 February 1944
• Docket Number: 35358.
• Citation: 16 So.2d 770,196 Miss. 201
• Court: Mississippi Supreme Court
• Parties: D. L. FAIR LUMBER CO. v. WEEMS.

16 So.2d 770

196 Miss. 201

D. L. FAIR LUMBER CO. v. WEEMS.

No. 35358.

Supreme Court of Mississippi

February 14, 1944

E M. Livingston, of Louisville, and Nichols & Huff, of Forest, for appellant.

O B. Triplett, Jr., of Forest, for appellee.

McGEHEE Justice.

The appellee, Weems, recovered a judgment in the court below against the appellant, D. L. Fair Lumber Company, and one James Willis, for the sum of $400 actual damages and $700 punitive damages, and from which judgment the lumber company alone has prosecuted this appeal.

On a former day of the term we reversed and remanded the cause for the assessment of actual damages only, the majority of the judges being then of the opinion that punitive damages should not have been awarded as against the D. L. Fair Lumber Co.

Upon a reconsideration of the case the Court has concluded that the evidence in support of the claim for actual damages is sufficient to support the verdict to the extent of $247.75 and that, therefore, a judgment should be rendered here for that amount. Now three of the judges are of the opinion that the proof justified the submission to the jury of the issue as to punitive damages against both of the defendants and that the award in that behalf should be accordingly affirmed. Hence the former opinion, reported in 15 So.2d 505, is withdrawn, the judgment of reversal and remand is set aside and this opinion, affirming the judgment for actual damages to the extent above indicated and the award of punitive damages, is substituted as the decision of the issues involved.

The proof discloses that the appellant lumber company became the owner of the timber situated on certain lands which were subsequently leased by the landowners to the appellee, Weems, as a pasture. The lessee of the pasture lands paid as a consideration therefor for the first year the sum of $200 in cash and agreed to repair the fences which then enclosed the same, the cost of which repairs amounted to about $150, and he had the option to renew his lease at the end of that year. He was pasturing about 77 head of cattle in this enclosure when the lumber company employed the defendant Willis to cut and remove the timber thereon at an agreed price per thousand feet.

When Willis undertook to cut and remove the timber, the appellee, Weems, the lessee of the pasture as aforesaid, granted him the use of his barns, advised him of the presence of the cattle in the pasture, and requested that in the event the said Willis should cut any trees on the fence, he should repair the same before leaving the premises in order that the cattle might not escape through any broken places therein. Willis promised to do this, but failed to comply with his agreement in that behalf. He began cutting the timber in the early part of May, causing many trees to fall on the fence and tear it down to such an extent that the cattle began escaping from the pasture. Thereupon Weems made complaint to Willis repeatedly about cutting the trees on the fence and causing his cattle to escape, and with the result that Willis took the position that he could not repair the fence day by day or week after week as he tore it down, stating that after he had finished cutting the timber he would put up the fence before leaving the premises. The cutting of the timber, however, continued over a period of three or four months, and, in the meantime, the fence was destroyed, by the falling of the trees, for a distance of from one fourth to one half of a mile, with intervening breaks or gaps therein, such as to permit the cattle to escape at will.

There was testimony to the effect that the lessee, Weems, employed a negro to repair the fence while the timber cutting was in progress but that Willis would not permit the negro to do so. Complaint was also made during the month of May to the appellant lumber company with regard to the activities of the said Willis, and to which complaint the lumber company replied that "Willis has promised to be careful of the fence and to repair any damage which he causes before he leaves the premises." The lumber company was thereafter advised that Willis had not repaired the fence, and was continuing to destroy the same by cutting timber thereon. In fact, a representative of the lumber company visited the scene and saw what was being done, but the said company continued to permit Willis to violate its own duty to the landowners and his duty both to the lumber company, the landowners, and their lessee, of using reasonable care not to unnecessarily injure the improvements on the land.

That the lumber company, having continued in its ownership of the timber, which was being cut and removed by Willis, whether as an independent contractor or as its agent, was under a duty to the landowners, by virtue of the relationship created by the timber deed, to see to it that, in the exercise of its rights as holder of the easement to cut and remove the timber, due and reasonable care should be taken not to unnecessarily injure the property of the landowners, is supported by both reason and authority. United States v Bostwick, 94 U.S. 53, 4...