Walther v. Warner

• Decision Date: 31 January 1858
• Citation: 26 Mo. 143
• Parties: WALTHER, Plaintiff in Error, v. WARNER et al., Defendants in Error.
• Court: Missouri Supreme Court

26 Mo. 143

WALTHER, Plaintiff in Error,

v.WARNER et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1858.

1. Quere, where the petition is in the ordinary form of a petition in trespass, not concluding contra formam statuti, and not containing a prayer for treble damages, whether a judgment for treble damages under the “act to prevent certain trespasses” (R. C. 1845) could be supported.

2. Where the court in which the cause is tried refuses to treble the damages, the supreme court will not review this action unless the evidence bearing upon the question of “probable cause” be preserved.

3. The burden of showing “probable cause” is on the defendant; but it is not necessary that he should set it up in his answer.

Error to Cole Circuit Court.

It is deemed unnecessary to set forth the facts more fully than they are set forth in the opinion of the court.

Parsons, for plaintiff in error.

I. It was the duty of the court and not of the jury to treble the damages. (See George v. Rook, 7 Mo. 149; Lowe & Forsyth v. Harrison, 8 Mo. 352; 8 Johns. 347; 1 Cow. 175; 25 Wend. 422; Warren v. Doolittle, 5 Cow. 684.)

II. There is nothing in the pleadings or evidence setting up any defence on the ground that defendants had probable cause to believe that the land on which the alleged trespasses were committed and the things injured and carried away and destroyed were their own. This defence should have been pleaded in order to make it available. The defendants' first instruction is neither within the spirit nor the letter of the statute. It asks the court to tell the jury that if defendants had probable cause to believe that those under whom they were contractors had a legal right to do what they have caused to be done, &c. The statute is that they must have had probable cause to believe the land was their own.

III. The petition is drawn substantially upon the statute, with all the allegations necessary to bring the offence within its terms. The petition does not charge the offences to have been committed against the form of the statute, nor is any reference in terms made to the statute; neither was it necessary to do so. This action was brought under the practice act of 1849, by virtue of which forms were abolished and every action was one upon the case. (Sess. Acts, 1849, p. 73; 6 How. Pr. R. 211; 12 Wend. 72; 8 How. Prac. R. 472.) The statute has been pleaded in this case by stating the facts which bring the case within it. (Gould's Pleading, 56; 19 Mo. 420.)

IV. It is no objection that the petition demands judgment for but one thousand and thirty dollars. (Sess. Acts, 1849, p. 92, art. 17, § 3.)

V. The only error committed was in refusing to render judgment for treble the damages found by the jury. Plaintiff in error asks that the judgment of the court below may be affirmed and that judgment for treble damages may be rendered for the plaintiff in error.

Gardenhire, for defendants in error.

I. The plaintiff's action is not based upon the statute. It makes no reference whatever to the statute, nor does it demand the relief to which the plaintiff now supposes himself entitled. He asks judgment for $1030 only. (See R. C. 1855, p. 1229, § 3; 1 Chitt. Pl. 372-3, 374; 2 Chitt. Pl. 494-5, 503; 1 Gall. 259; 5 Greenl. R. 78.)

II. If the action had been based upon the statute the question of “probable cause” ought to have been submitted to the jury. It is a question of fact and not of law. The plaintiff himself prevented such submission and does not and can not now complain of it.

III. If the question of “probable cause” was properly submitted to the court, its decision ought not to be disturbed. It is abundantly shown that defendants had probable cause to believe that the property injured was their own, or belonged to those who employed them, for the purpose of constructing the road.

NAPTON, Judge, delivered the opinion of the court.

The only point in this case is made upon the refusal of the circuit court to treble the damages found by the jury. The petition set forth that the defendant, without leave, and wrongfully, entered upon a certain tract of land, which is described, of which the plaintiff was owner, and cut down and destroyed timber growing on it of the value of five hundred dollars, and destroyed rails of the value of thirty dollars, and dug up and carried away clay, soil, &c., to the value of five hundred dollars. The petitioner averred that the land upon which these trespasses were committed was not the property of the defendants, and that they had no right or interest in the trees, rails, soil, &c., which had been taken or injured by reason of these trespasses. The plaintiff concluded by stating himself entitled to damages to the amount of one thousand and thirty dollars, and for this sum he asks judgment.

The jury found a verdict for the plaintiff and assessed his damages at seven hundred dollars, that being ascertained by them to be the aggregate value of the property destroyed or used by the defendants. The plaintiff moved for a judgment for treble this amount in accordance with the statute allowing this penalty for certain trespasses described in it; but the court refused to treble the damages, and this is complained of as error here.

The act entitled “An act to prevent certain trespasses” (R. C. 1845, p. 1069) provides that if any person shall cut down, injure or destroy trees growing on land belonging to another, or shall dig up mineral, soil, &c., or cut down and carry away grain, &c., in which trees, grain, soil, &c., he has no interest or right, and which are standing or growing on land not his own, he shall pay to the party injured treble the value of the property taken or injured. The third section of this act provides that this penalty may be recovered by an action of trespass or debt founded on this statute, or by indictment; but when indictment is resorted to the penalties go to the county treasury.

This petition makes no allusion whatever to this statute. It describes a trespass which is within its meaning and almost within its letter, but a trespass which was still the subject of an action at common law, as well since as before the passage of the statute. Neither in the body of the petition nor in its conclusion is any reference made to the statute, nor does the plaintiff any where say, directly or indirectly, that he seeks a recovery of the penalty which this statute has allowed. On the contrary, he avers that his damages amount to one thousand and thirty dollars, and for this sum, and not for treble this sum, he asks judgment.

It is laid down in Chitty's Pleadings (1 Chitt. Pl. p. 405) “that where the act or omission is not an offence at common law, it is necessary in all cases to conclude against the form of the statute or statutes, or to show at least that the declaration is founded on the statute by introducing the words de placito transgressionis et contemptus contra formam statuti.” And...