Menasha Woodenware Co. v. Spokane International Ry. Co.

• Decision Date: 25 March 1911
• Citation: 115 P. 22,19 Idaho 586
• Parties: MENASHA WOODENWARE COMPANY, a Corporation, Respondent, v. SPOKANE INTERNATIONAL RAILWAY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

115 P. 22

19 Idaho 586

MENASHA WOODENWARE COMPANY, a Corporation, Respondent, v. SPOKANE INTERNATIONAL RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

March 25, 1911

DAMAGES FOR TAKING RIGHT OF WAY-GENERAL AND SPECIAL VERDICT-JUDGMENT OF COURT ON-CONVERSION OF TIMBER-TREBLE DAMAGES-DAMAGES RECOVERABLE.

(Syllabus by the reporter.)

1. Under secs. 4396 and 4397, Rev. Codes, the trial court is authorized to render judgment on general and special verdicts.

2. Held, that certain findings of fact by the jury in the form of special verdicts were answers to questions of fact, which it was proper for the court to submit to the jury, and constituted a substantial compliance with the request of appellant in relation thereto.

3. Sec 4531, Rev. Codes, authorizing treble damages for unlawfully cutting and carrying off timber from the lands of another, is not applicable where it is not shown that the trespass was wilfully and intentionally committed.

4. An action to recover treble damages under sec. 4531, Rev. Codes where it is not alleged that the damage was committed wilfully or intentionally, does not come within the purview of said section, but is good as an action at common law which may entitle the plaintiff to recover his actual damages.

APPEAL from the District Court of the Eighth Judicial District, in and for the County of Bonner. Hon. Robt. N. Dunn, Judge.

Action to recover damages for trespass and conversion of timber. Judgment for plaintiff. Modified and affirmed.

Judgment affirmed. Entire costs of this appeal equally divided between appellant and respondent. Cause remanded with directions. Petition for rehearing denied.

Allen &amp Allen and C. L. Heitman, for Appellant.

The rule seems to be that separate verdicts should be returned where several counts state different causes of action. (12 Current Law, pp. 2262, 2263; Freedman v. N.Y. etc. Ry. Co., 81 Conn. 601, 71 A. 901, 15 Ann. Cas. 464.) It may be a single verdict containing separate findings. (Graves v. St. Louis etc. Ry. Co., 133 Mo.App. 91, 112 S.W. 736; Hughes Instructions to Juries, 415.) In special findings or verdict, the jury must find upon all the material issues of the case. (Sandstrom v. Smith, 12 Idaho 446, 86 P. 416; Hodge v. Easton, 106 U.S. 408, 1 S.Ct. 307, 27 L.Ed. 169; McElwee v. Metropolitan L. Co., 69 F. 302, 16 C. C. A. 232.)

Treble damages not recoverable under this complaint. (Sec. 4531, Rev. Codes; Barnes v. Jones, 51 Cal. 303; McDonald v. Montana Wood Co., 14 Mont. 88, 43 Am. St. 616, 35 P. 668; Endlich Interpretation of Statutes, sec. 129; Stewart v. Sefton, 108 Cal. 197, 41 P. 293-296.)

John P. Gray, Post, Avery & Higgins and A. H. Conner, for Respondent.

The court substantially complied with the request of defendant in submitting the cause upon a special verdict. Sec. 4397. Rev. Codes, provides for the rendition of special verdicts. Special verdicts control. (Bradbury v. Idaho & Ore. L. I. Co., 2 Idaho 239 (221), 10 P. 620; Gwin v. Gwin, 5 Idaho 271, 48 P. 295.)

As to treble damages: Ill. Central R. Co. v. Leiner, 202 Ill. 624, 95 Am. St. 266, 67 N.E. 398; Highway Commrs. v. Ely, 54 Mich. 173, 19 N.W. 940; Commrs. v. Perrier, 3 Phila. 229. "Wilfully" means "intentionally." (Bouvier's Law Dictionary; Bindbeutal v. Street Ry. Co., 43 Mo.App. 463; Northern Ry. Co. of France v. Carpentier, 13 How. Pr. 223; Stratton v. Central City Ry. Co., 95 Ill. 25.)

Interest on treble damages should be remitted and no need of reversal. (Brentner v. C. M. & St. L. R. R. Co., 68 Iowa 530, 23 N.W. 245, 27 N.W. 605; Haas v. Teters, ante, p. 182, 113 P. 96.)

WOODS, District Judge. Ailshie, Presiding J., and Sullivan, J., concur.

OPINION

WOODS, District Judge.

The respondent sues to recover damages from the appellant for the value of a right of way appropriated and used by appellant, through certain lands, including the value of the timber cut from said right of way and used by appellant, for three times the value of the timber alleged to have been cut by appellant, wrongfully and unlawfully, on lands of respondent outside of and adjoining said right of way, and used by the appellant; for damages alleged to have accrued to its whole tract of land, exclusive of the part taken for its right of way, by reason of its severance from that part taken by its right of way; and the grading, construction and operation of the railroad and the manner in which the same has been, is now and will be done; and for a separate cause of action, alleges that about July 9, 1906, appellant unlawfully, negligently, etc., caused a fire to be started upon its roadbed and lands adjacent thereto, which spread and destroyed 1,653,000 feet of timber, to respondent's damage.

The appellant by answer admitted the construction of its railroad across two forties of respondent's land in 1905 and 1906, without condemnation proceedings; denied that its acts were without the knowledge and consent of respondent; admitted that it cut timber off the right of way and used the same, and admits the value of the right of way was of the sum of $ 520.70. All other material allegations of the complaint were denied, and appellant offered to allow judgment for said sum of $ 520.70.

Upon these issues the trial was had before the court with a jury, and on December 23, 1909, the jury returned a general verdict in favor of respondent in the sum of $ 7,069.80, with interest, and also a special verdict of findings in the form of questions and answers. On the general verdict and the special findings the court on the 24th day of December, 1909, signed and entered judgment in favor of respondent and against the appellant, in the sum of $ 10,113.31 and costs.

This appeal is from the judgment.

The appellant contends that the court erred in refusing its request that, in submitting the form of the general verdict to the jury, the same be so framed as to specify and state the amount found upon each separate cause of action, and also in such form that the jury in the general verdict might find for either plaintiff or defendant; and also in refusing its request to require the jury to render a separate verdict upon each separate cause of action set forth in the complaint.

Secs. 4396 and 4397, Rev. Codes, are as follows:

"Sec. 4396. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues either in favor of the plaintiff or defendant; a special verdict is that by which the jury finds the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law."

"Sec. 4397. In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.

"The special verdict or finding must be filed with the clerk and entered upon the minutes. Where a special finding of fact is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly."

The defendant did not request special findings upon any material facts except as to the amount, if anything, the jury by their verdict should find to be due respondent upon each separate claim made by it against appellant. Whether under the statutes the appellant had a right to have the court comply with its request is not material, for the court by its action did submit to the jury a list of questions to be answered by them, and which were so answered as follows:

"We, the jury sworn to try the above-entitled cause, having found a general verdict for the plaintiff, make the following findings of fact, shown by question and answer, to wit:

"Question 1. How much do you find for the value of the right of way, including the value of the timber upon said right of way cut by the defendant?

"Answer: $ 772.00 and interest at 7% from December 1, 1905, up to December 24, 1909.

"Question 2. How much, if anything, do you find as damages accruing and which will accrue to the whole 280 acres described in the complaint, exclusive of the part taken for said right of way, by reason of its severance from that part taken for a right of way, and the grading, construction and operation of the railroad in the manner in which it has been graded, constructed and operated?

"Answer: $ 5090.00 and interest at 7% from July 9, 1906, up to Dec. 24, 1909.

"Question 3. How much, if anything, do you find as damages for timber cut and appropriated by the defendant from the lands of the plaintiff outside of the right of way, and is such amount the actual damage found by you to have been suffered, or three times such damage?

"Answer: $ 528.40 and interest at 7% from Aug. 9, 1906, up to Dec. 24, 1909. Actual damage.

"Question 4. How much, if anything, do you find upon plaintiff's second cause of action as damages on account of fire?

"Answer: $ 679.50 and interest at 7% from Aug. 9, 1906, up to Dec. 24, 1909.

"C. R. GREEN, Foreman."

This we hold was within the province of the court, was a compliance in substance with the request of appellant, and that there was no error in this action of the trial court.

The provisions of the sections of the Revised Codes above quoted answer the objection of appellant contained in its third...