West Yellow Pine Co. v. Stephens

• Decision Date: 15 July 1920
• Citation: 80 Fla. 298,86 So. 241
• Parties: WEST YELLOW PINE CO. v. STEPHENS.
• Court: Florida Supreme Court

86 So. 241

80 Fla. 298

WEST YELLOW PINE CO. v. STEPHENS.

Florida Supreme Court

July 15, 1920

Error to Circuit Court, Madison County; M. F. Horne, Judge.

Action by M. Stephens against the West Yellow Pine Company. Verdict for plaintiff, motion for new trial denied, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Market value of standing timber at time of conversion of logs held admissible. It is not error for the trial court, in a suit for conversion of logs, to permit plaintiff, over objection of defendant, to ask on direct examination as to what the market price of standing timber was at the time of the alleged conversion, and especially where it is shown that the questions and answers immediately following tend to indicate what the value of the logs made from the said standing timber would be at the time of conversion.

Measure of damages for conversion of timber stated. Where trees are unlawfully, but not willfully, cut, and the cut timber, a chattel, is converted, the measure of recovery in trover is the value of the timber at the time and place of conversion with interest; and there should be no deductions for labor performed upon the timber anterior to the time that the conversion was consummated by actual removal from owner's land.

Elements of 'conversion' stated. The essential elements of a conversion is a wrongful deprivation of property to the owner; neither manucaption nor asportation is an essential element thereof.

COUNSEL

R. H. Rowe, of Madison, for plaintiff in error.

Chas E. Davis, of Madison, for defendant in error.

OPINION

ANDREWS Circuit Judge.

M Stephens, plaintiff in lower court, defendant in error here, sued the West Yellow Pine Company, plaintiff in error here, in two counts:

First, for the wrongful conversion of lumber of the value of $300; and

Second, for the wrongful conversion of 836 sticks of pine timber of the value of $300.

The defendant below filed five pleas to the declaration:

First, not guilty;

Second, that the property was not that of plaintiff;

Third, that the plaintiff was not the owner in possession of the property;

Fourth, that the defendant did not deprive plaintiff of the use and possession of his property, and

Fifth, that no part of the property belonged to plaintiff, nor was he in the use or possession thereof.

Issue was joined on the above pleas, and at the trial the jury were instructed not to find for the plaintiff under the first count, that is, for the conversion of the lumber, but to confine their deliberations to the evidence as applicable to the second count, that is, for the conversion of logs. The jury found a verdict for the plaintiff; a motion for new trial was denied, and the case is here for review upon writ of error.

The first assignment of error is based upon the overruling of defendant's objection to the following question propounded to plaintiff's witness, Will Bailey: 'What was the market price of standing timber at the time per thousand feet?' Objection overruled, and witness answered: 'Three dollars and fifty cents.' The effect of the ruling thereon will best be shown by stating here the basis for assignments of error 2, 3, 4, and 5, which were also questions to which objections were made and overruled by the court. The second is, 'Are you in a position to know about what it will cost per thousand feet to cut the timber into logs?' Answer: 'Yes, sir.' Third: 'About what would it cost per thousand feet to put into lumber at the time?' Answer: 'It cost me $3.50 at that time to manufacture it into lumber.' Fourth: 'I do not mean to manufacture it into lumber; I meant to cut the timber off of the land and make the trees into logs?' Answer: 'About $2 per thousand.' Fifth: 'What in your opinion would those logs have been worth at the time after they were severed from the land; I have reference to per thousand feet?' Answer: 'Three dollars per thousand feet.'

It is observed that the third question with reference to what it would cost to manufacture logs into lumber, if error, was cured by the fact that the court charged that no verdict could be found under the first count of the declaration.

Defendant in the court below contended that the first question, furnishing the basis for the first assignment of error, was error upon the authority of the case of Skinner v. Pinney, 19 Fla. 42, 45 Am. Rep. 1, where it was held that the offer of the 'defendant' to prove the value of standing trees 'as a measure of damages' for the conversion was properly rejected, because the action was brought to recover the value of the logs taken away, and not for the trespass in cutting them down. And the offer of the defendant to prove the value of the logs at some other place to which he had removed them was properly rejected, because plaintiff was entitled to the value at the time and place of conversion.

It is observed by the questions and answers following the first assignment of error that the evidence purpose of asking the first question objected to was to establish the measure of damages in the case, and was one of the preliminary steps in arriving at the measure of damages. For it is seen that the question, 'What, in your opinion, would those logs have been worth at the time after they were severed from the land--I have reference to per thousand feet?' together with the answer thereto, 'Three dollars per thousand,' is a method usually followed in arriving at damages under the circumstances of this case. And this would have had the effect of curing any error for overruling the objection of the defendant below to the question contained in and furnishing the basis for the first assignment of error.

In fact, under the issues and circumstances of this case, it cannot be presumed that the timber involved would have been worth more standing than when put into logs for removing to the manufacturer, and therefore, if error at all, it was in favor of the defendant.

It cannot be assumed here, as suggested in brief of plaintiff in error, that the timber was also different in character from that testified about, in fact it is seen that the witnesses had reference to the timber involved in this case when he said, 'these logs would have been worth at that time after they were severed from the land $3 per thousand feet.'

Another reason might be mentioned why the question objected to could not be within the rule as...