Hall v. Shean

• Decision Date: 10 April 1916
• Docket Number: 17634
• Citation: 111 Miss. 223,71 So. 323
• Court: Mississippi Supreme Court
• Parties: HALL v. SHEAN

71 So. 323

111 Miss. 223

HALL v. SHEAN

No. 17634

Supreme Court of Mississippi

April 10, 1916

APPEAL from the circuit court of Bolivar county, HON. W. A. ALCORN Jr., Judge.

Suit by John J. Hall against C. D. Shean. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

D. J Allen, Jr., for appellant.

T. S Owen, for appellee.

OPINION

SYKES, J.

This suit was instituted in the circuit court of the second district of Bolivar county by John I. Hall, the appellant here, against C. D. Shean, the appellee, for damages for the cutting of trees from the lands of the appellant. The declaration is in two counts, the first count being for the statutory penalty prescribed by section 4977 of the Code for the cutting of these trees, and the second count for the actual value of the trees cut. After the plaintiff closed his case the defendant made a motion to exclude the testimony and that he be granted a peremptory instruction, which motion was sustained; hence this appeal.

It is the contention of the appellee that the statutory penalty cannot be recovered in this case because the testimony fails to show that the trees were cut within twelve months before the institution of the suit, or that they were cut by the agents or employees of the defendant while acting within the scope of their employment, or that the cutting was done willfully or recklessly. It is the contention that no actual damages were proven, and that the testimony did not show that the employees of the appellee cut the trees from the lands of the appellant; that the declaration claimed as actual damages the value of the trees, while the only testimony as to actual value was the value of the logs or timber after the trees had been cut. We do not think the testimony in the case was sufficient to submit the question to the jury of the recovery of the statutory penalty in the case. Therrell v. Ellis, 83 Miss. 494, 35 So. 826.

On the question of actual damages, there was testimony introduced by the plaintiff which showed that the line between the land of the plaintiff and the land upon which the defendant was cutting timber was plainly marked. The testimony also shows that about nineteen trees were cut on the land of the plaintiff by the same employees of the defendant who had cut the defendant's timber north of the line. The testimony further shows that some of...