Harold v. Toomey

• Decision Date: 28 July 1916
• Docket Number: 13255.
• Citation: 158 P. 986,92 Wash. 297
• Parties: HAROLD et al. v. TOOMEY.
• Court: Washington Supreme Court

158 P. 986

92 Wash. 297

HAROLD et al. v. TOOMEY.

No. 13255.

Supreme Court of Washington

July 28, 1916

Department 2. Appeal from Superior Court, King County; Walter M. French Judge.

Action by Eugene E. Harold and others against Louis W. Toomey. From a judgment for plaintiffs, defendant appeals. Affirmed.

Edwin H. Flick and John A. Frater, both of Seattle, for appellant.

Charles R. Barney, of Seattle, for respondents.

HOLCOMB J.

Respondents claimed damages from appellant in the sum of $500, trebled under the provisions of Rem. & Bal. Code, § 939, for willful trespass upon their land and the malicious cutting and injuring of a number of their trees and shrubs thereon. The damages shown by their testimony ranged from $400 to $1,000. The court, sitting without a jury, found that the entry by appellant upon respondents' land was willful that he committed the malicious acts of cutting and injuring the trees and shrubs complained of, and that the damage done was $300, which he trebled and awarded judgment therefor.

I. The judgment contains the findings necessary to support it, and the case, therefore, does not fall within the rule announced in Western Dry Goods Co. v. Hamilton, 86 Wash. 478 150 P. 1171. Furthermore, appellant proposed no findings, and none were refused by his honor. The first claim of appellant must therefore be denied.

II. While it is true that this court construes the statute (section 939, supra) strictly, and will discountenance any trebling of damages, except in cases where the trespass is voluntary and an element of willfulness or malice is combined therewith, nevertheless the statute was enacted for a just double purpose, to punish a voluntary offender and to provide, by trebling the actual present damage, a rough measure of compensation for future damages not generally ascertainable. Although the statute is penal in its nature, this action is not a criminal or penal action, but is merely a civil action for tortious damages, with added penal damages. It is not, therefore, necessary to prove an intent on the part of the tort-feasor, any more than the commission of the act and its consequences. Even in criminal cases the rule is that:

'Intent need not be proven by direct testimony; it may be inferred from the act itself and from the circumstances surrounding and attendant upon its commission.'

III. The facts in this case are largely circumstantial. No one actually saw the appellant doing the cutting. But it was shown that he lived across the street from this land, that the trees cut interfered with his view of the waters of Puget Sound, and that he was seen on the land in question, on the day the trees and shrubs were cut and despoiled, with an ax in his hand and a ladder leaning against a tree. The custodians of the place were absent at the time. No tress or shrubs except those which interfered with appellant's view of the Sound were cut or injured. If this were a criminal prosecution for the same act, and the jury or trier of the fact believed that these circumstances showed beyond a reasonable doubt the guilt of the accused, we would not disturb the verdict or finding. The quantity of proof required in this case being only a...