Williams v. Hendricks

• Decision Date: 27 April 1897
• Citation: 115 Ala. 277,22 So. 439
• Parties: WILLIAMS v. HENDRICKS.
• Court: Alabama Supreme Court

22 So. 439

115 Ala. 277

WILLIAMS v. HENDRICKS.

Supreme Court of Alabama

April 27, 1897

Appeal from circuit court, Pike county; J. W. Foster, Judge.

Action by I. Hendricks against R. J. Williams, to recover the statutory penalty for cutting 34 oak trees from lands of plaintiff. Defendant pleaded the general issue, and the statute of limitations of one year, upon which pleas issue was joined. Judgment for plaintiff. Defendant appeals. Reversed.

The evidence for the plaintiff was to the effect that the defendant and one D. F. Hinton were partners in getting out staves; that said Hinton entered upon the land of plaintiff after he had refused to allow either the defendant or Hinton to cut timber therefrom, and cut down 34 oak trees, which he used in making staves; that after cutting these trees the defendant offered to pay him a certain amount for the timber which had been cut, as shown by the statement which he presented to the plaintiff, but that the plaintiff declined to accept this payment. The evidence for the defendant was to the effect that he and Hinton were in partnership in the stave business; that the defendant furnished the money and Hinton did the work, looked after the business of getting the staves and timber; that he did not authorize or instruct Hinton to cut timber from the plaintiff's land, and did not know that he had done so until several months after the cutting, and that he offered to pay the plaintiff, for the timber cut upon his land, the amount which Hinton said was due the plaintiff therefor, when he (Hinton) rendered him the statement some months after the cutting. Hinton testified as a witness in behalf of the defendant that he had an agreement with the plaintiff by which he bought the plaintiff's timber for a certain price, and that the cutting was done under this agreement; that the defendant did not know of the cutting of the timber from the plaintiff's land until several months after it was done, and that the defendant did not authorize or instruct him to cut such timber. Upon the introduction of all the evidence the court, at the request of the plaintiff, among others, gave to the jury the following written charges: (1) "Although Williams was the partner of Hinton, yet if he knowingly aided and abetted or assisted in cutting the timber, he would be liable as to the question of cutting." (2) "If Williams was a partner of Hinton, the jury should look at this fact, in connection with all the evidence, to ascertain whether Hinton informed Williams that he was cutting Hendricks' timber, and, if Williams knew that he was cutting the timber, and did not object thereto, but assented to his going on with the cutting, then Williams would be aiding, abetting, or assisting Hinton." (3) "If Williams was a co-partner with Hinton, then the jury should look at the fact, in connection with all evidence, to ascertain whether he knew what Hinton was doing, and whether he aided, abetted or assisted Hinton knowingly in cutting the timber." (6) "If Williams was a partner of Hinton, and he knowingly aided, assisted, or abetted Hinton in cutting the timber then Williams is as liable as Hinton." (7) "In order to ascertain whether Williams aided, abetted, or assisted Hinton in cutting the timber, the jury should, in connection with all the evidence, look at the evidence that Williams offered to purchase the timber, and that he offered to pay Hendricks some money therefor after it was cut, and that he furnished the money to pay the hands for cutting, and that the hands went to his store to get pay." (10) "If the defendant knew the trees cut were not on his own land, and did not know on whose land the trees cut were, then this is sufficient to charge him with knowledge that the trees were Hendricks', if from the evidence the jury believe the trees were Hendricks'." The defendant separately excepted to the giving of each of the charges requested by the plaintiff, and also excepted to the court's refusal to give the following charge requested by him: "If the jury believe all the evidence in this case they should find for the defendant." The defendant assigns as error the giving of the charges requested by the plaintiff, and the refusal of the court to give the charges requested by him.

R. L Harmon, for appellant.

Hubbard & Hubbard, for appellee.

COLEMAN J.

Section 3296 of the Code of 1886 provides that "any person who cuts down any oak *** on land not his own willfully and knowingly, without the consent of the owner of the land, must pay to the owner ten dollars for every such tree," etc. The plaintiff, the appellee, sued to recover the statutory penalty for cutting down 34 oak trees. The evidence shows that the defendant and one Hinton were partners in getting staves, and according to their agreement the defendant furnished the money for the partnership, and Hinton attended to the business of getting out the staves. He furnished to defendant at regular stated periods the amounts due parties from whom trees were purchased, and also what was due for labor, and the defendant settled the claims as thus reported. There was evidence tending to show that Hinton had no authority from defendant to cut trees on any land except by agreement and purchase from the owner, and that the trees in controversy were cut by Hinton for staves without the knowledge and consent of the defendant. One of the questions involved in the case was whether the fact that defendant and Hinton were partners in the stave business subjected the defendant to the statutory penalty. In Story, Partn. § 168 the following language is used: "From what has been already suggested, it is obvious that a tort committed by one partner, or by any other agent of the partnership, will not bind the partnership unless it be either authorized or adopted by the firm, or be within the scope and business of the partnership." The general rule is that those partners only are liable in respect of a tort who are privy to the tort, but this rule is subject to the exception that partners are responsible for the tortious acts of a partner in the prosecution of the co-partnership business. Colly. Partn. § 457; 3 Kent, Comm. p. 47, note. The rule is well settled, at least in this state, that the master is liable for the willful tortious acts of his servants done within the scope and range of his employment, although the particular act was not authorized by the master. The rule as here declared was at first limited to actions against railroads. Gilliam v. Railroad Co., 70 Ala. 268. But, if sound as to railroads, there seems to be no good reason why it should not apply, under like circumstances, in all cases of respondeat superior, or to a partner acting for and within the scope of the business. Lilley v. Fletcher, 81 Ala. 234, 1 So. 273; Railroad Co. v. Frazier, 93 Ala. 45, 9 So. 303; Railroad Co. v. Higdon, 94 Ala. 286, 10 So. 282. In all these cases where the principle was applied the action sought to hold the principal or superior responsible for a common-law liability. The actions were to recover damages sustained as the consequential and natural result of the tort of the agent or servant. If, in the case at bar, the plaintiff had sued to recover the consequential damages sustained by the tortious cutting of the trees by Hinton, the partner, we would without hesitation, under the well-settled principles declared in the foregoing cases, hold that defendant was responsible for such damages resulting naturally and proximately from the tortious acts of his partner done in the range of the partnership business. The penalty is not imposed for a mere mistake or negligence in cutting the trees. The cutting must be done knowingly and willfully. Different principles arise when it is sought to hold a principle responsible for the criminal acts of his agent or servant. The act is highly penal, and must be strictly construed, and, before a party can be subjected to its penalties, it must clearly appear that he has violated it...