Furman v. A. C. Tuxbury Land & Timber Co

• Decision Date: 22 April 1919
• Docket Number: (No. 10192.)
• Citation: 99 S.E. 111
• Court: South Carolina Supreme Court
• Parties: FURMAN et al. v. A. C. TUXBURY LAND & TIMBER CO.

99 S.E. 111

FURMAN et al.

v.A. C. TUXBURY LAND & TIMBER CO.

(No. 10192.)

Supreme Court of South Carolina.

April 22, 1919.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Convenient.]

Appeal from Common Pleas Circuit Court of Charleston County; James E. Peurifoy, Judge.

Action by Boliver B. Furman and another against the A. C. Tuxbury Land & Timber Company, a corporation. From a judgment for plaintiffs, defendant appeals. Affirmed.

Miller & Miller and J. P. K. Bryan, all of Charleston, for appellant.

McMillan & Hoyward and Ficken & Erckmann, all of Charleston, for respondents.

HYDRICK, J. Defendant appeals from judgment on verdict for plaintiffs for $16,000 damages done to plaintiffs lands and the reserved timber thereon by defendant in cutting and removing therefrom certain timber which defendant had acquired the right to cut and remove under conveyances from plaintiffs.

In 1902, plaintiffs conveyed to another all the pine timber of ten inches (stump diameter) and upwards, at the time of cutting, on several tracts of their lands aggregating more than 7, 000 acres. The deed contains the privileges and easements usually found in such grants, and, among them, the right "to do any and all other things that may be necessary or convenient for the cutting, handling, hauling and removing of the timber." In 1910, plaintiffs extended the time for cutting until April 20, 1930. Having acquired these rights, defendant cut the timber in 1913.

There was on the lands a valuable growth of small pines, under the size sold, and timber of various other kinds, which was reserved. Plaintiffs alleged that, over their protests, defendants used steam skidders in removing its timber, and thereby damaged and destroyed the young pines and other reserved timber and undergrowth so that their lands were practically denuded and greatly damaged, and that, in so conducting its operations, defendant acted willfully and in reckless disregard of their rights.

Defendant denied the cutting or destroying of any timber that it did not have the right to cut or destroy under its license, and denied all allegations of wrongdoing, but admitted and justified the use of skidders, under the terms of the grant, on the ground that it was a convenient method of handling and removing the timber. At the trial, defendant proved that the use of skidders was a convenient method of handling and removing the timber, which was not controverted.

Appellant complains because the court instructed the jury that it was bound to exercise its rights in a reasonably careful way, with due regard to plaintiffs' rights, the error assigned being that the court thereby brought into the case the issue of defendant's negligence, and allowed the jury to give damages therefor, when there was no allegation of negligence.

Appellant contends that the acts complained of gave rise to two causes of action, one for actual damages, arising from negligence, and one from punitive damages for the alleged willful invasion of plaintiffs' rights; that this action was brought upon the cause of action for willfully invading plaintiffs' rights, and therefore it was error to allow a recovery upon the cause of action for negligence.

It must be conceded that defendant is sustained in this contention by the decision of this court in Proctor v. Railway, 61 S. C. 170, 39 S. E. 351, and in other cases that havefollowed that decision. In that case, the plaintiff was a passenger, and was wrongfully ejected from the train. He sued the railway company for damages, and alleged that his ejection was willful. This court held that the trial court erred in instructing the jury that they might include in their verdict damages arising from negligence. The decision I was rested upon the ground that the wrongful ejection gave rise to two separate and distinct causes of action, one for compensatory damages, arising from negligence, and the other for punitive damages, for the willful invasion of plaintiff's right, and that, as negligence was not alleged, there could be no recovery on that cause of action.

With the utmost respect for the opinion of the very able and learned justice who wrote for the court in that case, we venture to think that we can show that the decision was wrong and ought to be overruled. In fact, when followed to its logical conclusion, it led to such inconvenient, if not unjust, consequences in the practical administration of justice that it has already been overruled in effect, though not in so many words.

The case was remanded for a new trial, and plaintiff moved to be allowed to amend his complaint, so as to allege negligence. The motion was refused, on the ground that he would thereby be allowed to change substantially his cause of action, or to add a new, separate, and distinct cause of action, which could not be done by way of amendment. And that decision was affirmed by this court. Proctor v. Railway, 64 S. C. 491, 42 S. E. 427. But that decision has been overruled, in effect in Taylor v. Railroad Co.. 81 S. C. 574, 62 S. E. 1113, and in several other cases that have followed the decision in Taylor's Case.

Again, if in such cases there are two causes of action, the plaintiff is not required to sue upon both at the same time, or in the same complaint. Under the provisions of the Code, he may do so; but there is no law compelling him to do so. It follows that he could bring one action, charging negligence only, and recover his actual damage. He could then bring another action, alleging that he was willfully injured, and recover punitive damages; and, if he should fail in the first, the judgment would not bar the second. Upon the reasoning of Proctor's Case, that is precisely what has been attempted in at least two cases that have found their way to this court, to wit, Greer v. Telegraph Co., 105 S. C. 147, 89 S. E. 782, and Horton v. Pullman Co., 96 S. E. 289. In both these cases, we held that the second action could not be maintained, on the ground that a single cause of action cannot be split into several actions. In effect, these decisions overruled Proctor's Case.

The error in that decision was in confusing the cause of action with the nature of the damages which the law imposed upon the defendant as a consequence of its invasion of the plaintiff's right. In Emory v. Hazard Powder Co., 22 S. C. 476, 53 Am. Rep. 730, this court adopted Pomeroy's definition of the term "cause of action, " to wit, that it is a primary right, invaded without legal justification or excuse. Pom. Rem. 452 et seq. Let us apply that definition to the facts of Proctor's Case. His right was to be carried. The defendant invaded that right by ejecting him from the train, without legal justification or excuse. The two things combined the right, and its invasion completed his cause of action. The damages which the law imposed upon the defendant as a consequence of its invasion of his right was the relief which it gave him for the wrong done him. The nature or kind of damages which the law allowed him to recover depended upon the manner in which his right was invaded, which is the same as to say, the nature of the relief allowed him depended upon the manner in which his right was invaded. By the manner in which his right was invaded, we mean the mental attitude of defendant in doing the wrong; if negligently, the relief was compensatory damages; if willfully, the relief should have been compensatory and exemplary damages; but in either event damages was the relief. It follows that the relief alone, and not the cause of action, was determined or affected by the mental attitude of the defendant in doing the wrong. The authorities agree that the relief is no part of the cause of action.

The law requires the plaintiff to state the facts...