Hewitt v. Harvey

• Decision Date: 31 August 1870
• Citation: 46 Mo. 368
• Parties: ROBERT A. HEWITT, Appellant, v. LEMUEL HARVEY, Respondent.
• Court: Missouri Supreme Court

46 Mo. 368

ROBERT A. HEWITT, Appellant,

v.LEMUEL HARVEY, Respondent.

Supreme Court of Missouri.

August Term, 1870.

Appeal from Fifth District Court.

Strong & Chandler, for appellant.

I. The petition is sufficient under the statute of trespasses. This suit is not founded on a penal statute, but upon a remedial statute. Though the consequences of the violation are partially punitive, yet the primary object of the law is to give compensation for injuries actually sustained. (13 Pick. 94, 102; Gen. Stat. 1865, p. 661, § 41; id. 379, § 1.)

II. This action is upon the first clause of section 1 of the statute (Wagn. Stat. 1345), and under this clause it is only necessary to allege that the land upon which the timber was cut, etc., was the land of another person, and this is done in the amended petition.

III. The damages were properly trebled by the Circuit Court. (17 Mo. 465; 18 Mo. 514.)

Hall and Vories, for respondent.

I. Actions on statutes for wrongs done in violation of statutes must conclude “contrary to the form of the statute.” (1 Chit. Pl. 373; Peabody v. Hoyt, 10 Mass. 36; Cross v. United States, 1 Gallison, 36; Leon v. United States, id. 261; Lea v. Clark, 2 East, 333; 13 Wend. 396; Lowe & Forsyth v. Harrison, 8 Mo. 351; Waltham v. Warner, 26 Mo. 145.) This rule of the common law has not been changed by our practice act, but is continued in force by it. (Gen. Stat. 1865, p. 661, § 41.) In this respect our present statute differs from the act of 1849.

II. The petition in this case is not a good petition under the statute concerning trespasses. A petition under the statute must state “that the defendant had no interest or right in the property taken away, and that it was on land not his own.” (8 Mo. 352.)

III. The verdict of the jury in this case does not find the value of the timber cut by defendant, and hence it was error for the court to treble the damages. (Ewing v. Seaton, 17 Mo. 465; Labeaume v. Woolfolk, 18 Mo. 514; 26 Mo. 145.)

WAGNER, Judge, delivered the opinion of the court.

This was an action for trespass in cutting and carrying away certain timber on land belonging to the plaintiff. In the Circuit Court the jury returned a verdict for the plaintiff, and on motion the court gave treble damages. On appeal, the District Court reversed the judgment and awarded single damages only. From the state of the pleadings, no question can be considered here except the action of the court in reference to damages.

The amended petition on which the cause was tried substantially set forth that the defendant, without leave and wrongfully, entered upon land of which the plaintiff was owner, and cut down, injured, destroyed, and carried away trees, timber, rails, and wood, standing and growing on the land, to the value of $400, by which acts of defendant, plaintiff was damaged $500, and he therefore prayed judgment for $1500, three times the amount.

The statute upon which defendant attempts to base his claim declares that “if any person shall cut down, injure or destroy, or carry away any tree placed or growing for use, shade, or ornament, or any timber, rails, or wood standing, being, or growing on the land of any other person, * * * in which he has no interest or right, standing, lying, or being on land not his own, * * * the person so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed, or carried away, with costs.” (2 Wagn. Stat. 1345, § 1.)

It is contended by the counsel for the respondent that the petition is manifestly and materially defective as a pleading formed on the statute, and can only be considered as giving a commonaw right of action. The ground assumed, that in declaring on the statute it is indispensably necessary to conclude with an averment that the act was done contrary to the form of the statute, we are hardly willing to concede. Such strictness might be required in bringing an action purely for a penalty; but this statute, although penal, is also remedial. Judge Scott, in Lowe et al. v. Harrison, 8 Mo. 352, propounds the inquiry whether the words should not be employed in the declaration. But the point was not necessary to the decision of the case, and he does not undertake to decide it.

Judge Napton, in Waltham v. Warner, 26 Mo. 141, seems to intimate that that would be the correct mode of pleading; but the question was not expressly passed upon. Chitty, in giving a form of debt for double rent in holding over, inserts the words “against the form of the statute,” but says in the note that some of the forms contain this averment, and some do not, without expressing any opinion whether it is necessary or not. (2 Chit. Pl. 495, 5th ed.)

In Massachusetts the statute provided that a party might recover double damages for an injury caused by a defect in a highway, and the supreme judicial court of that...