Gilchrist-Fordney Co. v. Parker

• Citation: 69 So. 290,109 Miss. 445
• Decision Date: 28 June 1915
• Docket Number: 16834
• Court: United States State Supreme Court of Mississippi
• Parties: GILCHRIST-FORDNEY CO. v. PARKER

69 So. 290

109 Miss. 445

GILCHRIST-FORDNEY CO. v. PARKER

No. 16834

Supreme Court of Mississippi

June 28, 1915

APPEAL from the circuit court of Jasper county. HON. W. H. HUGHES Judge.

Suit by M. L. Parker against the Gilchrist-Fordney Company. From a judgment for plaintiff, defendant appeals.

The first count charged that on account of the defects of the logging engines of the defendant, and through the negligence in their operation over defendant's logging road, sparks set fire to grass and weeds allowed to accumulate on the right of way, and thence fire spread on plaintiff's land and destroyed fences and other property, resulting in damage.

Second count alleges negligence as above, but seeks the statutory penalty as provided by section 4988 of the Code of Mississippi 1906, which is as follows:

"If any person shall set on fire any lands of another, or shall wantonly, negligently, or carelessly allow any fire to get into the lands of another, he shall be liable to the person injured thereby, not only for the injury to or destruction of buildings, fences, and the like, but for the burning and injury of trees, timber, and grass, and damage to the range as well; and shall moreover be liable to a penalty of one hundred and fifty dollars in favor of the owner."

The assignments of error are as follows:

(1) The court erred in overruling the motion of the appellant to require appellee to elect upon which one of the two counts of his declaration he would proceed.

(2) The court erred in allowing appellant to recover, when it appeared that at the time of the fire alleged the land was in actual possession and occupancy of a third person for a term of one year under a contract.

(3) The court erred in permitting plaintiff, over objection, to testify that he had a deed to the land in question in his pocket, and in not requiring plaintiff to produce the deed.

(4) The court erred in allowing plaintiff to recover, when it appeared that plaintiff had sold the land in December, 1910 and the suit was not instituted until January, 1911. (Plaintiff sold the land after the fire).

(5) The court erred in holding that plaintiff could recover when there was entire absence of testimony as to negligence of defendant as alleged in plaintiff's declaration.

Plaintiff recovered judgment for one hundred and fifty dollars statutory penalty and ten dollars damage.

Affirmed.

Stone Deavours, for appellant.

The first assignment of error is that the trial court erred in overruling the motion of the appellant to require the appellee to elect upon which count of his declaration he would proceed.

There can be no question, we take it, but what the appellee in his declaration prepared one count in tort and the other in debt. The first count of the declaration is clearly and unmistakably a count in tort. It has every ear mark of a count in tort; in fact the counsel for appellee did not dispute, in the court below, that the first count was a count in tort.

The second count in the declaration is clearly and unmistakably a count in debt. It is a count for the statutory penalty, and such a count is always an action in debt, and therefore an action on contract. See Elder v. Hilzheim, 35 Miss 231.

As we understand the decisions of this court, there is no proposition that has been more clearly enunciated than the proposition that there cannot be a joinder of counts, one in contract and one in tort in the same declaration.

This court has reaffirmed that decision in the case of Hazelhurst v. Cumberland Telephone and Telegraph Company, 83 Miss. 303.

From the foregoing authorities it would seem to be firmly settled in this state that a count in tort and a count in debt cannot be joined in the same declaration. This being true unquestionably the court below erred in not requiring the appellee, who was the plaintiff in the court below, to elect whether he would proceed on that count of his declaration which was in tort, or on that count of his declaration which was in contract. See, also, 1 Cyc. page 736, par. b; 1 Ency. of Plead. and Prac., page 171, par. 10; Erie City Iron Works v. Barber, 118 Pa. St. 6.

Now, it will be noted that in the case at bar the appellant vainly endeavored to get the court to require the appellee to elect on which count of his declaration he would proceed.

Of course if two counts of a declaration are in the form of counts ex contractu a demurrer will not lie; but certainly if it appears that one count of the declaration is on cause of action ex contractu, and the other count is on a cause of action ex delicto then the complaining party will be required to elect upon which he will proceed.

That an action of debt is an action ex contractu is settled beyond the peradventure of a doubt. See 5 Ency. Plead. and Prac., page 898, par. 2. The case of West v. McClure, 85 Miss. 296, is an instructive case on this same point.

The second assignment of error is that the circuit court erred in holding that the appellant could recover in this case, although it appeared, from the testimony without contradiction, that the land alleged to have been burned, was at the time of the fire, in the actual possession and occupancy of a third person for a term of one year under a contract.

We respectfully submit to the court that the trial court in so holding committed error.

This is not a suit for damage done in the reversionary interest of the owner after the expiration of the particular estate in this instance a lease for one year. The declaration is not framed on that theory, and that idea was evidently not in the mind of the pleader when the declaration was drawn. There are of course instances in which suit may be brought for damage done to a reversionary interest in land; but in order for such suit to be maintained it must be made to appear from the written statement of the cause of the action, that the plaintiff files, that the suit and demand is based on a claim of this nature. And we do not believe that it will be contended that the declaration, in either count, in this case, can be tortured into any such construction.

The general rule is that the party bringing suit must be the owner of the property at the time of the happening of the event which is alleged to have caused the hurt and damage. It is hard to conceive that an action of trespass to property can be maintained by one not in the possession actual or constructive of the property alleged to be damaged unless the peculiar circumstances that make such action justifiable and proper are set forth with some degree of certainty in the declaration. A party might have a right of action for an injury done to him on his...