Rogers v. Wunderlich

• Decision Date: 07 June 1926
• Docket Number: 12008.
• Parties: ROGERS et al. v. WUNDERLICH et al.
• Court: South Carolina Supreme Court

133 S.E. 545

135 S.C. 307

ROGERS et al. v. WUNDERLICH et al.

No. 12008.

Supreme Court of South Carolina

June 7, 1926

Appeal from Common Pleas Circuit Court of Marlboro County; R. W Memminger, Judge.

Action by Florence Rogers and others against Marie M. Wunderlich and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. M Stevenson, of Bennettsville, and M. C. Woods, of Marion, for appellants.

T. I Rogers, of Bennettsville, and L. M. Lawson, of Hartsville, for respondents.

STABLER J.

This is an action for damages, both actual and punitive, brought by the plaintiffs against the defendants for trespass upon the lands of the plaintiffs in cutting and appropriating timber upon said lands.

The complaint alleges that the plaintiffs were at the time of the trespass and are now owners in fee and in possession of the real estate described in the complaint; that about December 1, 1922, and at sundry times thereafter, the defendants entered upon and trespassed upon the said lands and did cut and carry away a large amount of trees, logs, and timber, and, although warned by the plaintiffs not to do so, continued to cut and carry away the timber and logs of the plaintiffs in a reckless and wanton manner.

The defendants, answering the complaint, denied that they or any of them had committed any acts of trespass on the lands of the plaintiffs or that they had damaged the plaintiffs in any manner whatsoever.

The case was tried in the court of common pleas for Marlboro county, resulting in a verdict for the plaintiffs in the sum $2,000 actual and $2,000 punitive damages, and judgment on the verdict was duly entered for this amount.

The defendants, Marie M. Wunderlich and H. S. Wunderlich, appeal to this court by four exceptions, stating error in two particulars: (1) Error in allowing testimony as to an estimate of damages through the cutting and appropriating of merchantable timber based upon the difference in the value of the premises before and after the cutting and removal of the timber, and error in the charge of the circuit judge on the same point; and (2) error in refusing to set aside the verdict for punitive damages, on motion for a new trial, on the ground that same was not supported by the testimony; and in refusing a new trial nisi as to "punitive and actual damages, when the evidence as to the punitive damage was insufficient and the amount found was excessive, and when an incorrect rule ascertaining damages had been submitted to the jury."

The testimony complained of is as follows:

"Q. Mr. Whipple, Mr. Woods asked you what was the general value of that timber, taking it all on the tract-pine, oak, hickory, and everything else-and you told him $3 a thousand; if you take out the best timber on it what is it worth? (Objected to.)

The Court: I think he has testified to it several times before; ask him again.

The witness: The grade of the timber that has been cut, in comparison with the balance of the tract as a whole, the fine timber would be worth twice as much as all the timber throwed together on an average would be worth.

Q. And how much more besides double in value, how much more would the balance be depreciated? (Objected to.)

The Court: That has been admitted, because that comes into the difference in value before and after.

Q. How much would the balance of the tract be depreciated by reason of the removal of the best? A. By computing the amount that has been cut of the fine timber at $3 a thousand, then it would be at double the price of the whole aggregate per thousand.

Q. I know that; you did not catch my meaning. How much additional damage would that be to the balance of the timber? A. The cost of putting the track on there would be about $1 per thousand. (Objected to.)

The Court: The idea Mr. Rogers is driving at is to what extent would you consider the property less in value after the cutting had been done than before it had been done.

Mr. Rogers: That is exactly what I am after.

The Court: What is your estimate on that; how much difference would there be?

The Witness: Well, it would be first to double the fine timber; that would be $6; now there would be 300,000 less timber to be got off of the place. It would take the same expense to get the balance, and that 300,000 would have to bear its proportion of the expense, about $1 per thousand.

The Court: What is your final answer? A. My final answer is that it would be about $7 on the 300,000 feet.

The Court: The idea the court wants to get at-here is a piece of property alleged to have been trespassed on and certain

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