Kinzua Lumber Co. v. Daggett

• Decision Date: 16 March 1955
• Citation: 281 P.2d 221,203 Or. 585
• Parties: KINZUA LUMBER COMPANY, a corporation, Respondent, v. J. F. DAGGETT, Orpha Daggett, H. S. Mersereau and J. W. Lidstrom, copartners, doing business as Midstate Lumber and Supply Company, Appellants.
• Court: Oregon Supreme Court

Page 221

281 P.2d 221

203 Or. 585

KINZUA LUMBER COMPANY, a corporation, Respondent, v. J. F. DAGGETT, Orpha Daggett, H. S. Mersereau and J. W Lidstrom, copartners, doing business as Midstate Lumber and Supply Company, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 19, 1955.

Decided March 16, 1955.

Bruce Spaulding, Portland, for appellants. On the brief were Wilbur, Mautz, Souther & Spaulding and Gordon Moore, Portland.

George H. Brewster, Redmond, and George L. Dukek, Fossil, for respondent.

Before WARNER, C. J., and ROSSMAN, LATOURETTE and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the defendants from a decree of the circuit court which granted the plaintiff (1) an injunction against further trespasses by the defendants, and (2) a judgment against them in the sum of $1,517.94. In explanation of the judgment, we quote the following from the challenged decree: 'The plaintiff is entitled to double damages for timber removed, or the sum of $1,462 and the sum of $55.94.' The sum of $55.94 last mentioned is not in contest and represents one half of the cost of (1) ridding the land of slashings, and (2) surveying a part of the land as well as cruising some of its timber.

This cause was submitted to the court upon a stipulation, from which we take the following:

'It is stipulated by and between plaintiff and defendants * * * that the plaintiff was at the times mentioned in the complaint, the owner of the timber and land described and mentioned in the complaint 'That at the times mentioned in the complaint, the defendants cut upon the lands referred to in the complaint, timber belonging to the plaintiff to the extent of 35,560 board feet of Ponderosa pine, of the value of $25.00 a thousand; and 8670 feet of fir of the value of $7.50 per thousand; totaling $889.00 for the pine and $65.00 for the fir;

* * *

* * *

'It is further stipulated by and between plaintiff through its attorneys and the defendants through their attorneys, that this is a suit in equity and the question of jurisdiction as a suit in equity shall not be contested.

* * *

* * *

'It is further stipulated that the Court in its decree shall issue a permanent restraining order against the continuance of the defendants' acts in trespass.

'It is further stipulated that the trespass was inadvertent, but wrongful and without authority.

'It is further stipulated that the question of double damages shall be left for the determination of the Court to determine whether or not in a suit in equity, the statutory provisions of sections 8406 and 8407, Oregon Compiled Laws Annotated, are applicable, or whether plaintiff can only recover single damages.'

According to the stipulation, the defendants returned to the plaintiff logs of the value of $223 which they had cut off its land. The two above amounts of $889 and $65 total $954. From that total the decree deducted the sum of $223 just mentioned, leaving a balance of $731. It doubled the latter and thus got $1,462, to which it added $55.94, which is explained in the first of the above paragraphs. Thereby was had $1,517.94, the amount of the challenged judgment. None of the items is in dispute. The defendants challenge nothing except the award of the enhanced, or accumulative, damages. Although the only issue submitted by this appeal is whether or not a court of equity may double the damages awarded for a wrongful cutting of trees, we gave the foregoing explanation in order to present the background of the issue.

Sections 8-406 and 8-407, O.C.L.A., mentioned in the stipulation, are now ORS 105.810 and 105.815. The former makes provision that judgment 'for treble the amount of damages claimed, or assessed for the trespass' shall be entered against any person who

'without lawful authority, wilfully injures or severs from the land of another any produce thereof or cuts down, girdles or otherwise injures or carries off any tree, timber or shrub on the land of another person, * * * or on the street or highway in front of any person's house, or in any village, town or city lot, or cultivated grounds, * * *.'

That section of our laws further says:

'* * * In any such action, upon plaintiff's proof of his ownership of the premises and the commission by the defendant of any of the acts mentioned in this section, it is prima facie evidence that the acts were committed by the defendant wilfully, intentionally and without plaintiff's consent.'

It will be observed that ORS 105.810 is applicable when the wrongful act was done 'wilfully.'

ORS 105.815 says:

'If, upon the trial of an action included in ORS 105.810, it appears that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, or that the tree or timber was taken from uninclosed woodland for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall be given for double damages.'

Since the stipulation states that the defendants' trespass was 'inadvertent, but wrongful,' it came within the purview of ORS 105.815. No relief is asked under ORS 105.810.

The stipulation, which is quoted in a preceding paragraph, declares, as will be recalled, that this suit is in equity and that the plaintiff is entitled to an injunction prohibiting further trespasses. Therefore, the defendants do not challenge the jurisdiction of the court which entered the attacked decree.

The plaintiff argues that the double damages for which ORS 105.815 makes provision are remedial and not penal. Therefore, according to it, a court of equity may enter judgment for the recovery of the enhanced amount. The defendants contend that any sum over and above actual damages given to the owner of a tree which a wrongdoer felled is a penalty. They argue that the double damages allowed by ORS 105.815 are penal, and, having taken that position, claim that equity will not grant a judgment for their recovery. Longview Fibre Co. v. Johnston, 193 Or. 385, 238 P.2d 722, and Stott v. J. Al. Pattison Lumber Co., 95 Or. 604, 188 P. 414, affirmed decrees which awarded enhanced damages for the wrongful felling of trees. In the former, the damages were doubled; in the second, they were trebled. However the right of the chancellor to award accumulative damages was not challenged. Although ORS 105.815 says that 'judgment shall be given for double damages', the defendants believe that a court of equity should read the word 'shall' as though it were 'may'.

From the foregoing, it appears that the issue submitted by this appeal is this: is the enhanced sum for which ORS 105.815 makes provision a penalty or is it compensatory in nature. If it is the latter, it will be unnecessary to determine the issue as to whether or not a court of equity can render judgment for the amount of a penalty.

We take the following from Vold, Are Threefold Damages Under the Anti-Trust Act Penal or Compensatory?, 28 Ky.L.Jour. 117:

'Arguments which seek to penalize the enforcement of statutory threefold damage provisions by characterizing them as penalties call for especially attentive scrutiny with regard to the assumptions from which their course of reasoning begins. The term 'damages' and the term 'penalty' are frequently used in a wide range of uncertain and varying meanings. This is true not only of popular speech and of much of the available legal literature but also of many of the judicial opinions themselves.'

ORS 105.815, which the defendants claim is a penal statute, employs no term such as 'wilful' or 'intentional' which are often found in statutes which impose penalties. Sometimes the presence in a statute under analysis of a word such as 'malicious', which is peculiarly appropriate to punitory measures, helps to identify its nature. Richards v. Sanderson, 39 Colo. 270, 89 P. 769. Far from employing words that evince a purpose to deal with wanton conduct and punish it, ORS 105.815 plainly indicates a legislative design for its application in cases wherein the offender had no evil purpose. For example, the section speaks of trespasses which are 'casual or involuntary' and encompasses a person who 'had probable cause to believe that the land on which the trespass was committed was his own'. It includes a situation in which the timber was taken from uninclosed land for the purpose of repairing an adjacent public road or bridge. The section is concerned solely with the taking, and not with the state of mind of the offender. If the taking was attended with a malign purpose, the wrongdoer is subject to ORS 105.810 which renders material the intent of the wrongdoer.

Generally, punitive damages are sums of money that are awarded in addition to actual damages in order to punish the offender. In our use of the term 'actual damages' we mean the sum which is recoverable under the common rules governing the award of damages. Punitive damages are assessed against the wrongdoer because the law disapproves of the conduct in which he engaged and seeks to stamp it out. Cases in which punitive damages are sought have a two-fold aspect: (a) the recovery of redress for an injury suffered by the victim, and (b) the amercement of the wrongdoer. Obviously, only those can recover damages who have in fact been injured, and, likewise, only those can be punished who have done something which the state subjects to the imposition of a penalty. Since the defendants argue that the double damages for which ORS 105.815 makes provision are punitive, it is necessary to examine that section of our laws for the purpose of determining whether or not its aim is to punish the conduct of the individuals to whom it is applicable. In other words, does ORS 105.815 manifest a tenet that one whose 'trespass was casual or involuntary' or who felled a tree when he 'had probable cause to believe that the land on...