Elliott v. Sherman

• Decision Date: 20 March 1952
• Citation: 147 Me. 317,87 A.2d 504
• Parties: ELLIOTT v. SHERMAN. COLLIN v. SHERMAN.
• Court: Maine Supreme Court

Page 504

87 A.2d 504

147 Me. 317

ELLIOTT v. SHERMAN.

COLLIN v. SHERMAN.

Supreme Judicial Court of Maine.

March 20, 1952.

Waterhouse, Spencer & Carroll, Biddeford, for plaintiff.

Titcomb & Siddall, Sanford, Walter M. Tapley, Jr., Portland, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On motions and exceptions by the defendant. The plaintiff in each of these cases was the owner and occupant of a valuable summer estate and home in Kennebunkport, in the County of York. These estates of the plaintiffs were located between a summer hotel known as Old Fort Inn and the sea. The two estates were contiguous and certain trees and growths thereon afforded each of the plaintiffs privacy with respect to the other plaintiff and privacy from observation from the inn, as well as beautified the estates. The defendant was connected with the management of Old Fort Inn. The trees growing upon the plaintiff's estates obscured the view of the sea from Old Fort Inn. It is claimed that the defendant, who was active in the management of Old Fort Inn, directed employees of Old Fort Inn to cut out trees and growth, and limbs growing on trees situate on the plaintiffs' estates and thereby open up a vista to the sea across and through the plaintiffs' estates for the benefit of Old Fort Inn. While it is not denied that employees of the corporation owning Old Fort Inn did make the cuttings upon the plaintiffs' estates, it is the position of the defendant that the plaintiffs have failed to show that such work was done at his direction or that he was responsible therefor. This question was left to the jury for their determination and by their verdicts they have found this issue against the defendant.

The actions were brought to recover treble damages under the provisions of R.S. c. 111, § 11. Under appropriate instructions from the court, the jury found specially that the trespasses were committed willfully and knowingly, that the trees were ornamental trees and that the lands on which the trespasses were committed were improved lands. They also specially found the amount of actual damage suffered in each case to be $5,000. After receipt of verdicts, each in the sum of $5,000, the Justice presiding ordered a judgment to be entered in each case for three times the amount of the verdict, viz., for $15,000.

In the Elliott case the declaration set forth that the actual damage to the plaintiff's property caused by the trespass was $10,000 and in the Collin case that such damage was $6,000. Neither declaration expressly claimed treble damages. Each declaration, however, set forth sufficient facts to entitle and authorize the plaintiff to recover treble damages. In each writ the 'ad damnum' was set in exactly the same amount as the actual damage alleged in the declaration. The verdicts in each case were less than, and within the sum set forth in the declaration as the actual damage to the plaintiff's estate caused by the defendant's trespass thereon. In each case trebling the amount of actual damage produced a sum in excess of the ad damnum in the writ.

After the presiding Justice had ordered judgments to be entered in each case in three times the amount of the verdict rendered by the jury, defendant filed general motions attacking the verdicts on the usual grounds and also attacking the action of the court in trebling the verdicts and ordering judgment in each case in excess of the ad damnum in the writ. Defendant also filed exceptions to the denial of his motions for directed verdicts and to the action of the court in ordering judgments in treble the amount of the verdicts found by the jury.

The exceptions to the refusal of the presiding Justice to direct verdicts for the defendant and the motions to set the verdicts aside, so far as the motions are based upon allegations that they are against the evidence and the manifest weight of the evidence are without merit. A discussion of the testimony would serve no useful purpose. Suffice it to say, there was credible evidence from which the jury could find that the trespasses were committed at the direction of the defendant, that his action in this respect was willful, and knowingly taken in total disregard of the plaintiffs' property rights, that the trees cut were ornamental trees and cut upon lands which fell within the description of those described in Section 11, supra. The attitude of the defendant is well shown by the uncontradicted testimony of a witness who testified that the defendant stated, prior to the cutting of the trees on the Collin property and upon being told that they would make trouble:--'To hell with them. Let them sue me. All they can get is the cost of the trees.'

Except for the fact that compliance with the order that judgment be entered for three times the amount of the actual damage would result in a judgment in each case in excess of the ad damnum (of which later), the procedure followed in these cases is in accord with precedent. It is not necessary to expressly claim treble damages in the declaration. It is sufficient to set forth facts showing that the plaintiff is entitled thereto. Black v. Mace, 66 Me. 49. In cases where multiple damages are claimed it is immaterial whether the court, acting within its authority, multiplies the verdict for actual damages returned by the jury, or instructs the jury to determine the actual damage and return a verdict for the multiple damages. The principle is the same whether the multiple damages be double or treble damages. Black v. Mace, supra. Quimby v. Carter, 20 Me. 218.

This brings us to the consideration of the effect of the order that judgment be entered in three times the amount of the actual damage found by the jury when compliance therewith would result in the entry of a judgment in excess of the ad damnum in the writ.

The precise question here presented, so far as we can learn, has not been before this or any other court. This is not the ordinary case where a verdict has been rendered in excess of the actual damage claimed in the declaration, or in excess of the ad damnum. In each of these cases the verdict was for an amount smaller than the actual damage claimed and set forth in the declaration, and smaller than the ad damnum in the writ.

When these plaintiffs made the ad damnum in their respective writs in the same amount as the actual damage alleged in the declaration, it became inevitable that if actual damages were found by the jury in excess of one-third of the amount claimed, a judgment for treble damages in accord with the provisions of the statute would exceed the ad damnum in the writ. Faced with this situation, and the amount of each verdict exceeding one-third of the ad damnum in the respective writs, the court nevertheless ordered judgments for treble damages, which judgments would exceed in amount the ad damnum in each of the writs. This action by the court is challenged both by motions and exceptions.

As early as 1830 this court in McLellan v. Crofton, 6 Me. 307, 325, declared: 'It is a principle of law established by several decided cases, that if judgment be rendered for a sum larger than the amount of the ad damnum, it is, for that reason reversible on a writ of error; and it must be reversed, unless the plaintiff will enter a remittitur of the excess. If this be done the court will affirm the judgment for the residue. Hutchinson v. Crossen, 10 Mass. 251; Grosvenor v. Danforth, 16 Mass. 74.'

This general principle so early recognized has never been questioned by this court unless possibly by a dictum in Morse v. Sleeper, 58 Me. 329, 332, which intimates that if the error was amendable the statute of jeofails will save a judgment from reversal on error. The Maine cases which discuss the effect of a verdict in excess of the ad damnum and the power of the court to allow amendments to the ad damnum both before and after verdict, to wit, McLellan v. Crofton, supra, Converse v. Damariscotta Bank, 15 Me. 431, Merrill v. Curtis, 57 Me. 152, Morse v. Sleeper, 58 Me. 329, Hare v. Dean, 90 Me. 308, 38 A. 227, and Starbird v. Eaton, 42 Me. 569, throw very little light upon the specific problem here involved.

In a note found in Ann.Cas.1913B, 709, the general rule as to the power of the court to allow an amendment increasing the ad damnum after verdict is well stated as follows: 'While a trial court has a board discretion in allowing amendments, even after a verdict, in furtherance of justice, the general rule is that a party is bound by the allegations of this pleadings, and therefore an amendment of a declaration or complaint after verdict, by increasing the amount of the damages claimed, to correspond with the amount of the verdict, will not, as a rule, be permitted without setting aside the verdict and granting a new trial to enable the...