Hammond v. McMurray Brothers, 5098

Citation286 P. 603,49 Idaho 207
Decision Date04 April 1930
Docket Number5098
PartiesA. L. HAMMOND and ANNA S. HAMMOND, His Wife, Respondents, v. MCMURRAY BROTHERS, a Copartnership, RAY MCMURRAY and HERMAN C. MCMURRAY, Copartners, Doing Business Under the Firm Name and Style of MCMURRAY BROTHERS, Appellants
CourtUnited States State Supreme Court of Idaho

APPEAL AND ERROR-ASSIGNMENTS OF ERROR-SUFFICIENCY OF-TRESPASS ON UNFENCED LANDS - EXEMPLARY DAMAGES - ACTS OF AGENT-RATIFICATION.

1. Specification of error for insufficiency of evidence, not pointing out particulars in which evidence was insufficient held not reviewable (supreme court rule 40).

2. Specification of error that court erred in granting injunction held insufficient for review.

3. Insufficiency of instructions on exemplary damages held not prejudicial under evidence showing malicious and wanton trespass by defendants.

4. Masters held shown to have participated in and ratified unlawful trespass of servants, and were liable for exemplary damages.

5. Parties claiming right to graze on public land were required to ascertain where lines of land were and remain within them.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Hugh A. Baker, Judge.

Action for damages and injunction. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

T. M Morris, for Appellants.

We are not here raising the point that the compensatory damages were erroneously awarded; the evidence indicates that at least the plaintiffs were compensated for actual damages, and while the amount in our judgment was quite excessive there was such a conflict on the value of the range that we will not undertake the task of overcoming the conflict of evidence rule. Our appeal is confined therefore, to the punitive damage award. The general theory of this type of damage is that an act has not only actually injured one in his person or property but it was so done that its commission calls for punishment. This appeal is on the theory that punishment for the trespass was not warranted. We believe the Idaho doctrine is set forth in the cases of Unfried v. Libert, 20 Idaho 708, 119 P. 885; Gunnell v. Largilliere Co., Bankers, 46 Idaho 551, 269 P. 412; C. S., sec. 8074, subd. 1; Klenk v. Oregon Short Line R. Co., 27 Utah 428, 76 P. 214; Davis v. Hearst, 160 Cal. 143, 116 P. 530; McConnell v. Quinn, 71 Cal.App. 671, 236 P. 200; Warner v. Southern P. Co., 113 Cal. 105, 54 Am. St. 327, 45 P. 187; Pacific Steam Whaling Co. v. Alaska Packers' Assn., 138 Cal. 632, 72 P. 161; Trabing v. California Nav. & Imp. Co., 121 Cal. 137, 53 P. 644.

S. T. Lowe, for Respondents.

The assignments of error are insufficient to present to the court the insufficiency of the evidence to justify the verdict, for the appellants have wholly failed to point out wherein the verdict is not supported by the evidence, and does not comply with rule 40 of the supreme court. (Morton Realty Co., Ltd., v. Big Bend Irr. & M. Co., 37 Idaho 311, 218 P. 433; Walton v. Clark, 40 Idaho 86, 231 P. 713; Hill v. Porter, 38 Idaho 574, 223 P. 538; South Side Livestock Loan Co. v. Iverson, 45 Idaho 499, 263 P. 481; Walker v. Idaho Lettuce Co., 44 Idaho 478, 258 P. 931; Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; Bell v. Morton, 38 Idaho 758, 225 P. 137; Weber v. Pend D'Oreille Mining & Reduction Co., 35 Idaho 1, 203 P. 891.)

The plaintiffs were entitled to recover, and the evidence justified a verdict for exemplary damages, for the evidence showed the acts of the defendants to be wilful, wanton and with a total disregard for the rights of the plaintiffs. ( Hewett v. Samuels, 46 Idaho 792, 272 P. 703; Unfried v. Libert, 20 Idaho 708, 119 P. 885; Cosgriff Bros. v. Miller, 10 Wyo. 190, 98 Am. St. 977, 68 P. 206; Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255; Carlson Sheep Co. v. Schmidt, 21 Wyo. 498, 133 P. 1053; Henderson v. Coleman, 19 Wyo. 183, 115 P. 439, 1136; Colbert v. Journal Pub. Co., 19 N.M. 156, 142 P. 146; Western Union Tel. Co. v. Garrett, 59 Okla. 50, 158 P. 619.)

Principals are liable in exemplary damages for the acts of their agents or employees, for they were committed in the course of his employment, with the knowledge, consent and authority of the principal. (Bingham v. Lipman, Wolfe & Co., 40 Ore. 363, 67 P. 98; Klind v. Valley County Bank, 69 Mont. 386, 222 P. 439; Grorud v. Lossl, 48 Mont. 274, 136 P. 1069; Klenk v. Oregon Short Line R. R. Co., 27 Utah 428, 76 P. 214; Carlson Sheep Co. v. Schmidt, 21 Wyo. 498, 133 P. 1053; Henderson v. Coleman, 19 Wyo. 183, 115 P. 439, 1136.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Plaintiffs are the owners in fee of 256.83 acres of unfenced land in sections 30 and 31, and 320 acres, fenced, in section 28 (upon which they reside), and are in possession and entitled to the possession of 320 acres in sections 20 and 21, under filings made pursuant to the Stock Raising Homestead Act (39 Stats. 862, 43 U.S.C.A., sec. 291 et seq.), all in township 11, south of range 21, east of the Boise meridian, in Cassia county, Idaho. There is a large acreage of unoccupied government land in the vicinity of plaintiffs' holdings, as well as land in possession of third persons. Plaintiffs own both sheep and cattle, and graze them upon their said lands.

On January 8, 1926, defendants caused a band of sheep belonging to them to be driven across plaintiffs' fenced land over and upon plaintiffs' unfenced land in said section 30, where they had established a camp. They moved their camp twice, but at all times, over the protest of plaintiffs, defendants grazed their sheep upon plaintiffs' lands, trespassing thereon continuously until January 22, 1926, when they left. Plaintiffs commenced this action for damages, and to restrain the further trespass of defendants' sheep, on January 15, 1926. The court issued a temporary restraining order and an order to show cause, etc., returnable January 23, 1926. No appearance was made on that day, and by oral agreement of counsel it was understood that the right to injunction might be tried out at the hearing on the merits. The cause was tried to a jury on the question of damages, and by the court as to the right to injunction. The jury found for plaintiffs, fixing their damages at $ 250 actual damages, and $ 250 punitive damages; and the court made findings and issued a perpetual injunction, restraining defendants from trespassing on plaintiffs' lands. From the judgment entered, defendants appeal. They do not attack that part of the judgment for actual damages, but contend plaintiffs are not entitled to exemplary damages or a perpetual injunction.

Appellants' first specification of error, that the evidence is insufficient to justify a verdict for exemplary damages, does not point out the particulars in which the evidence is insufficient, and is therefore not a substantial compliance with rule 40 of this court, requiring a distinct enumeration of the several errors relied on. The third specification of error, that "the court erred in its judgment and decree perpetually enjoining and restraining the defendants from entering upon the real estate described in the amended complaint," is for like reason wholly insufficient. Appellants are not entitled to a review of the questions sought to be raised by these specifications. (South Side Live Stock Loan Co. v. Iverson, 45 Idaho 499, 263 P. 481; Walker v. Idaho Lettuce Co., 44 Idaho 478, 258 P. 931; Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; Bell v. Morton, 38 Idaho 758, 225 P. 137; Hill v. Porter, 38 Idaho 574, 223 P. 538; Morton Realty Co., Ltd., v. Big Bend Irr. & M. Co., 37 Idaho 311, 218 P. 433.)

The second specification of error is to the effect that the court erred in giving instructions numbered 10 and 11. Instruction No. 10 defined exemplary damages, and instruction No. 11 told the jury that in assessing plaintiffs' damages, if they found for them, they were not limited to actual damages, but might assess exemplary damages also, if they found that defendants' trespass upon plaintiffs' lands was malicious. The court defined "malicious" as not meaning "spite or ill will, but the intentional doing of a wrongful act without just cause or excuse."

Appellants contend that these instructions were not justified by the evidence and that they misstate the law, in that the jury is told that punitive damages are justified "by way of punishment for the commission of a wrong or tort wilfully"; that is, that trespass is a tort or wrong, and if wilfully committed, punitive damages are justified. It is also contended that the court's definition of "malicious" permits the recovery of punitive damages on the mere doing of an unlawful act without just cause or excuse.

In view of the facts disclosed by the evidence in this case, the error is not deemed sufficiently prejudicial to warrant a reversal. While instructions substantially in the language of those given by the court have been sustained in other jurisdictions (Branson's Instructions to Juries, 2d ed sec. 687, pp. 602, 603; 3 Randall's Instructions to Juries, p. 2441, secs. 2078(2), 2078(3); 2 Blashfield's Instructions to Juries, 2d ed., pp. 2069, 2070, secs. 2627, 2628; 3 Blashfield's Instructions to Juries, 2d ed., p. 4017, sec. 6473; see, also, 17 C. J., pp. 983-985; 8 R. C. L., p. 588, sec. 132; 18 R. C. L., p. 3; Wendelken v. Stone, 88 N.J.L. 267, 86 A. 376), we think they should have more fully stated the law of exemplary damages as laid down by this court. (See Unfried v. Libert, 20 Idaho 708, 119 P. 885; Gunnell v. Largilliere Co., Bankers, 46 Idaho 551, 269 P. 412; Hewett v. Samuels, 46 Idaho 792, 272 P. 703.) However, the evidence shows the acts complained of to have been not only malicious, but...

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