Illinois Cent. R. R. Co. v. Coln

• Decision Date: 22 November 1926
• Docket Number: 25817
• Citation: 110 So. 782,145 Miss. 399
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. R. CO. v. COLN. [*]

110 So. 782

145 Miss. 399

ILLINOIS CENT. R. R. CO. v. COLN. ^[*]

No. 25817

Supreme Court of Mississippi

November 22, 1926

Suggestion of Error Overruled Jan. 10, 1927.

. (In Banc. Suggestion of Error Overruled Jan. 10, 1927.)

1 DAMAGES. Evidence of amount of land burned over and number and size of trees killed by fire held sufficient for jury on issue of actual damage.

In suit against railroad for alleged wrongful destruction by fire of grass and trees, evidence showing amount of land burned over and number and size of trees held sufficient for jury on issue of actual damage, without showing amount of damage in dollars and cents. (Affirmed by divided court.)

2. PENALTIES. Only one of statutory penalties may be recovered for wrongful destruction of trees by fire (Hemingway's Code, section 3246, amended by Laws 1924, chapter 167; Hemingway's Code, section 3257).

Only one of statutory penalties authorized by Code 1906, section 4977 (Hemingway's Code, section 3246), amended by Laws 1924, chapter 167, and Code 1906, section 4988 (Hemingway's Code, section 3257), may be recovered for wrongful destruction by fire of trees.

3 STATUTES. Penal statutes must be construed strictly in favor of person to be penalized.

Penal statutes must be strictly construed in favor of person against whom penalties are claimed.

HOLDEN, J., SMITH, C. J., and COOK, J., dissenting in part.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Action by Mrs. M. E. Coln against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals, and plaintiff cross-appeals. Affirmed by divided court on direct appeal, and affirmed on cross-appeal.

Case affirmed on both direct and cross-appeals.

R. V. Fletcher and May, Sanders & McLaurin, for appellant.

I. The peremptory instruction should have been given because: (a) As to the actual damages claimed, there was no proof of negligence and none whatever of loss and damage to the plaintiff; (b) as to the penalty, there was no proof of negligence which would warrant the imposition of the statutory penalty; but, on the contrary, the testimony showed that the section crew in burning off the right of way performed a necessary and lawful act and exercised every precaution to prevent the spread of the fire.

The law does not impose upon a railroad company liability, either for actual or punitive damages, in a case of this character in the absence of negligence or wilful wrong in the doing of the act complained of. Mhoon v. Greenfield, 52 Miss. 434; McCleary v. Anthony, 54 Miss. 708.

II. The judgment is excessive and in no event can be sustained for more than the statutory penalty of one hundred fifty dollars plus three dollars and sixty cents, the value of the six bushels of corn.

The plaintiff did not prove, nor offer to prove, that the trees, cane and pasture destroyed by the fire were possessed of any real value. On the other hand, the witnesses for the defendant testified without contradiction, that the things destroyed by the fire had no value and several of the witnesses testified that so far as the land was concerned, the fire was beneficial to the owner. And yet the jury returned a verdict of five hundred fifty dollars with no evidence to sustain it. See L. & N. R. R. Co. v. Stewart, 78 Miss. 600, 29 So. 294; Smith, etc., Co. v. Tamps, etc., Co., (Fla.) 89 So. 352; Iberia Tel. Exchange v. Cumberland T. & T. Co. (La.), 25 So. 975; R. & D. R. R. Co. v. Chandle (Miss.), 13 So. 267; Kershaw Milling Co. v. Lankford (Ala.), 105 So. 896; 8 Am. & Eng. Enc. of Law, 548; M. & O. R. R. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Duncan v. Watson, 28 Miss. 187; N. O. M. & C. v. Harrison, 105 Miss. 18, 61 So. 655; Stewart v. Coleman, 81 So. 653.

In arriving at a verdict for actual damages the jury disregarded the uncontradicted and unimpeached testimony of the witnesses for the defendant and resorted to conjecture and guesswork. This they were not warranted in doing and it is condemned by the authorities cited.

III. The instructions for the plaintiff were erroneous and misleading. One instruction was wrong because it left it to the jury to determine whether the servants of the railroad company were guilty of wilfulness, wantoness, negligence or carelessness when none were shown; and because it authorized the jury to find for the plaintiff the value of the trees destroyed when no value was proved, thus inviting the jury to guess at the value.

Another instruction is bad because it authorizes the jury to find for the plaintiff and award the penalty of one hundred fifty dollars if the employees of the defendant wantonly, negligently or carelessly allowed fire set out on the right of way to get onto the land of plaintiff, when the proof showed conclusively that they did everything they reasonably could to prevent spread of the fire.

Ely B. Mitchell, for appellee.

This action is based on section 167, Laws of 1924. For legal definitions of the word "destroy," see 18 C. J. 976; 11 Penn. S.Ct. 560-64; Rapid Safety Fire Extinguishers Co. v. Hay-Budden Mfg. Co., 75 N.Y.S. 1008-10. The phrase "deadened timber" as used in a logging contract means to circle the trees with a cut deep enough to interrupt the flow of the sap and thereby kill the tree. Des Allemands Lbr. Co. v. Morgan City Lbr. Co., 41 So. 332.

It was gross carelessness to burn off the right of way without some tools, implements or contrivance by which the fire could be governed and controlled. If they intended to burn off only the right of way, why was it they were sticking fire to hay and Johnson grass upon the land of the appellee at a dry season of the year? It only goes to show that they were carrying out exactly what was expressed when the section foreman told his hands, "Not to put it out, but to let her burn to hell and back." The same intention was carried out when Mr. Worsham, said, "I thought I would do him a little."

Under this testimony we contend that the timber was wilfully, carelessly, negligently and recklessly destroyed by fire. This being a fact, under the testimony, the kind of trees, the number and the price was shown.

The statutory penalty would amount to seven thousand two hundred eighty dollars. This is what the appellee would be entitled to, but she is a generous hearted woman, not wanting to take the full advantage of the law given her, and agreed that twenty-five hundred dollars would be satisfactory to her. Therefore, the amount that she was entitled to under the evidence was reduced from seven thousand two hundred eight dollars to twenty-five hundred dollars.

The court held that this fact showed we were not suing for the statutory penalty under chapter 167, Laws of 1924. The plaintiff in the court below then moved the court to allow her to amend her declaration so that the declaration would correspond with the facts as testified to. This he refused to do. We contend that this was a great error on the part of the court, and for this reason the case should be reversed and remanded.

Under section 3258, Hemingway's Code, the appellee had a right to claim less than the penalty given. The appellant has no right to complain for the favor conferred upon it by the appellee.

The declaration together with this charge shows clearly that counsel for appellee had in mind at the time the declaration was prepared, and drew the declaration under, chapter 167, Laws of 1924. She included in the declaration only the statutory penalty for the destruction of the trees and did not include the actual market value of the same.

The court held in Roel v. Shields, 86 So. 763, "The owner can only recover either the statutory penalty or the value of the trees cut, but not both." After this decision, the legislature enacted chapter 167, Laws of 1924, which gave the owner the right to recover for both the penalty and the value of the trees destroyed.

"Where defendant has cut down growing trees on plaintiff's land without his permission, it is not error to submit to the jury the question of defendant's liability for the statutory penalty." Cumberland Tel. & Tel. Co. v. Odeneal, 24 So. 966.

The second count of the declaration was based upon section 32, 57 Hemingway's Code. If the jury believe what these witnesses testified, which they did according to their verdict, then it cannot be disputed that the railroad company, through its agents, set on fire lands of the appellee.

If they could have put out the fire before it got too big a start and failed to do so, and were instructed by the section foreman not to do it, but to let it burn, I contend that they wantonly, negligently and carelessly allowed the fire to get on to the lands of the appellee.

"The owner can maintain an action under this chapter for the penalty and damages though the land is not in his possession but is leased to a third person, he cannot be required to elect whether he will stand on the count for damages or for the penalty, since in one suit he can recover both." Gilchrist Fordney Co. v. Parker, 109 Miss. 445.

Another contention of counsel for appellant is that the judgment is excessive. They claim there is no evidence offered to prove that the trees, cane, and pasture which were destroyed by the fire, possessed any real value; but see 26 R. C. L., page 971.

This case was tried before a jury of dirt farmers, saw mill men etc. They knew as much about the value of pastures, corn and timber as any witnesses who could have been obtained to testify on the subject. The kind and size of the timber destroyed was testified to by witnesses for the appellee. The real value of the trees was not testified to because the law, according to our contention, fixed the penalty at five and fifteen dollars per...