State Bank of Waterloo v. Potosi Tie & Lumber Co.

• Citation: 299 Ill.App. 524,20 N.E.2d 893
• Decision Date: 13 March 1939
• Docket Number: Gen. No. 10.
• Parties: STATE BANK OF WATERLOO v. POTOSI TIE & LUMBER CO.
• Court: United States Appellate Court of Illinois

299 Ill.App. 524

20 N.E.2d 893

STATE BANK OF WATERLOO

v.POTOSI TIE & LUMBER CO.

Gen. No. 10.

Appellate Court of Illinois, Fourth District.

March 13, 1939.

Appeal from Circuit Court, Monroe County; Alfred D. Riess, Judge.

Suit by the State Bank of Waterloo against the Potosi Tie & Lumber Company to recover the statutory penalty for cutting trees on the lands of another without the owner's permission. From a judgment for plaintiff, defendant appeals.

Affirmed. Burr S. Goodman, of Waterloo, and Green, Verlie & Hoagland, J. F. Schlafly, Jr., and C. D. Eastman, all of Alton, for appellant.

Harry E. Jackson, of Waterloo, and P. K. Johnson, of Belleville, for appellee.

MURPHY, Presiding Justice.

For some time prior to 1933 plaintiff, a banking corporation was the owner and holder of a mortgage lien on land in Monroe County owned by L. J. Cahill. Plaintiff foreclosed its mortgage and received a master's deed which it filed for record in August 1934. After plaintiff acquired its deed Cahill continued in possession as its tenant. Between October 1936 and June 1937 the defendant corporation, acting through its agent F. A. Reddick, assuming Cahill to be the owner of the land and having the legal right to sell the standing timber bought it from him and went upon the land and cut a large number of oak trees and made them into ties. Plaintiff instituted this suit to recover the statutory penalty for cutting trees on the lands of another without the owner's permission. Sec. 5, Chap. 136, Ill.Rev.Stat. The section relied upon provides a liability of $8 per tree for oak such as were involved in this case. The defendant answered the complaint and denied that it cut the trees and that it violated the statute. On a trial without a jury the plaintiff recovered a judgment for $2,080.

On this appeal no question is raised as to plaintiff's title to the land nor to the fact that defendant's agents cut the timber but it contends that the statute is penal and that the evidence does not show that it knowingly and wilfully committed the wrong.

The section of the statute pleaded has been incorporated in the statutory law of this State for more than a century. In the early history of the State it was given frequent application and in the few cases that reached the Supreme Court it was construed as a penal statute the object of which was to punish the wrongdoer as well as to recompense the injured individual. Cushing v. Dill, 2 Scam. 460, 3 Ill. 460;Whitecraft v. Vanderver, 12 Ill. 235;Watkins v. Gale, 13 Ill. 152;Gebhart v. Adams, 23 Ill. 397, 76 Am.Dec. 702;Cushman v. Oliver, 81 Ill. 444.

In Cushing v. Dill, supra, the court said, “This action is brought upon a penal statute, the object of which is to punish the wrong]doer, as well as to recompense the injured individual. To subject any one, therefore, to the penalty of the act, it must be shown to have been willfully violated, by proof that the party charged committed the forbidden act himself, or caused another to do it by his command or authority. The statute gives the penalty against the actual trespasser only; it would be a violation of legal principles, therefore, to extend it so as to embrace another by implication.”

In Whitecraft v. Vanderver, supra, it was said, “To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence.”

In Cushman v. Oliver, supra, the court referring to the Cushing case said, “It was said, in Cushing v. Dill [supra], where this statute for the first time came up for construction, that to subject any one to its penalties, it must be shown to have been wilfully violated, by proof that the party charged committed the forbidden act himself or caused another to do it by his command or authority.”

The evidence shows that defendant, a Missouri Corporation, had in its employ one F. A. Reddick who was its territorial manager for several counties in this State, including Monroe, and that a part of his duties was to buy standing timber, cause it to be cut and made into ties. His employment for these duties was general, he selected the timber and made the purchase without special direction or authorization from the defendant. He used his judgment in the performance of these duties. He wrote checks on the defendant in payment for the timber. It does appear in the evidence that he had a specific direction from the defendant to always examine public records to ascertain the ownership of the timber before making a purchase.

The evidence further discloses that Reddick dealt with Cahill the tenant in possession of the property and made the purchase from Cahill and issued checks to him in payment. Cahill cashed one of the checks but the others he tendered to plaintiff which it declined to accept. Plaintiff had no knowledge of the transaction with Cahill and did not know of Reddick's entry into the premises until after the trees were all cut. It is not claimed that Cahill had any authority to act for the plaintiff.

Reddick admits he did not cause the records to be examined to ascertain the title but says he relied upon the fact that Cahill was in possession and had been for many years and also upon what Cahill said to him as to his right to sell the timber....