D. L. Fair Lumber Co. v. Weems, 16 So. 2d 770 (1944). · Go Syfert
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D. L. Fair Lumber Co. v. Weems, 16 So. 2d 770 (1944). Cases Citing This Book View Copy Cite
119 citation events (8 in the last 25 years) across 13 distinct courts.
Strongest positive: American Nat. Ins. Co. v. Hogue (missctapp, 2000-01-18)
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1950 1988 2026
Top citers, strongest first. 6 distinct citers.
cited Cited as authority (rule) American Nat. Ins. Co. v. Hogue
Miss. Ct. App. · 2000 · confidence medium
Fair Lumber Co. v. Weems, 196 Miss. 201, 218 , 16 So.2d 770, 772 (1944).
cited Cited as authority (rule) Snow Lake Shores Property Owners Corp. v. Smith
Miss. · 1992 · confidence medium
Fair Lumber Co. v. Weems, 196 Miss. 201, 219-21 , 16 So.2d 770, 772-73 (1944).
cited Cited as authority (rule) Western Fire Insurance v. Copeland
S.D. Miss. · 1987 · confidence medium
Fair Lumber Co. v. Weems, 196 Miss. 201, 221-22 , 16 So.2d 770, 773 (1944); American Ry.
cited Cited as authority (rule) Butler v. Provident Life & Accident Insurance
S.D. Miss. · 1985 · confidence medium
Fair Lumber Co. v. Weems, 196 Miss. 201, 221-22 , 16 So.2d 770, 773 (1944); American Ry.
discussed Cited as authority (rule) Embrey v. Holly (2×)
Md. · 1982 · confidence medium
Fair Lumber Co. v. Weems, 196 Miss. 201 , 16 So.2d 770, 773 (1944); Rinker v. Ford Motor Co., 567 S.W.2d 655, 669 (Mo. App. 1978); Schmidt v. Minor, 150 Minn. 236 , 184 N.W. 964 , 965-66 (1921); Clemmons v. Life Ins.
discussed Cited as authority (rule) Andrews v. GAB Business Services, Inc.
N.D. Miss. · 1977 · confidence medium
Fair Lumber Co. v. Weems, 196 Miss. 201 , 16 So.2d 770, 773 (1944); Hood v. Moffett, 109 Miss. 757 , 69 So. 664 (1915); American Railway Express Co. v. Bailey, 142 Miss. 622 , 107 So. 761 (1926); Progressive Casualty Ins.
D.L. Fair Lumber Co.
v.
Weems.
Feb 14, 1944.
16 So. 2d 770
E.M. Livingston, of Louisville, and Nichols Huff, of Forest, for appellants. We submit that Willis was not the servant of appellants at the time of the alleged fence damage, but was an independent contractor; that no damage whatsoever was done to the fence or fences or to the property which in any way interfered with Mr. Weems' rights by the agents, servants and employees of the appellants. It follows, therefore, that whatever damage was done, if any, was done by Willis and not the appellants, and the court erred in refusing the peremptory instruction requested by appellants at the conclusion of the evidence. New Orleans, Baton Rouge, Vicksburg Memphis R. Co. v. Norwood, 62 Miss. 565 ; Till v. Fairbanks Co., 111 Miss. 123 , 71 So. 298; Callahan Construction Co. et al. v. Rayburn, 110 Miss. 107 , 69 So. 669; Crescent Baking Co. v. Denton et al., 147 Miss. 639 , 112 So. 21 ; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143 , 147 So. 315 ; Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1 , 122 So. 191 ; Cook v. Wright, 177 Miss. 644 , 171 So. 686 ; Crosby Lumber Manufacturing Co. v. Durham, 181 Miss. 559 , 179 So. 285 ; Texas Co. v. Wheeless et al., 185 Miss. 799 , 187 So. 880 ; Rogers v. Florence R. Co. (S.C.), 9 S.E. 1059; McBride v. Jerry Madden Shingle Co. (Mich.), 138 N.W. 1077; Gay v. Roanoke, etc., Lumber Co. et al. (N.C.), 62 S.E. 436 ; Knowlton et al. v. Hoit (N.H.), 30 A. 346 ; Scales v. First State Bank (Ore.), 172 P. 499; Young v. Fusburg Lumber Co. (N.C.), 60 S.E. 654 ; Schroer v. Brooks (Mo.), 224 S.W. 53 ; D.E. Hewitt Lumber Co. et al. v. Mills (Ky.), 236 S.W. 949. The lower court apparently was of the opinion that the rule as to an independent contractor applies in personal injury cases, but does not apply where property rights are involved. We are unable to see the reason for any such rule. If there should be a distinction between the two we think the employer should be held to a much more strict accountability for personal injuries and those cases where human life is involved than should be required of him where property is involved. We submit that there is no evidence in the record to warrant giving the punitive damage instruction. At most, this was only a trespass where a little damage was done to a fence. It would have been impossible for Willis or any other person to have cut and removed this timber without doing some damage to the fence. Mr. Willis testified that he agreed to keep the fence up as best he could and did make such repairs as he could make, and we submit that no one should be penalized by being required to pay punitive damages. Punitive or exemplary damage is allowed in cases of malice, willfulness, insult, fraud, oppressions, gross negligence and the like. Yazoo M.V.R. Co. v. Hardie, 100 Miss. 132 , 55 So. 967. To justify the infliction of exemplary damages the act must be done wrongfully and must be the intentional doing of a wrongful act without excuse, or the doing of such wrongful act under such circumstances that the law will imply the evil intent. Illinois Cent. R. Co. v. Dodds, 97 Miss. 865 , 53 So. 409; Illinois Cent. R. Co. v. Owens (Miss.), 95 So. 833; Illinois Cent. R. Co. v. Ramsay, 157 Miss. 83 , 127 So. 725 ; Yazoo M.V.R. Co. v. Mullen, 158 Miss. 774 , 131 So. 101 ; Bounds v. Watts, 159 Miss. 307 , 131 So. 804 ; McDonald v. Moore, 159 Miss. 326 , 131 So. 824 . We submit that there is no substantial evidence to support the verdict of the jury, certainly none to support a verdict for $400 actual damage and $700 punitive damage, and the court should have sustained the motion for a new trial, and its failure to do so was error. Where the trial judge is of the opinion that the verdict is against the overwhelming weight, or clearly against great preponderance of the evidence, a new trial should be allowed. Mobile Ohio R. Co. et al. v. Johnson, 165 Miss. 397 , 141 So. 581 ; Fore v. Illinois Cent. R. Co., 172 Miss. 451 , 160 So. 903 . O.B. Triplett, Jr., of Forest, for appellee. Appellants, by their timber deed, owed a positive duty to Mrs. Alexander and Mrs. Hunter, as landowners, not to do unnecessary damage to the land and fences in removing the timber purchased. Rice v. W.L. Robinson Lumber Co., 110 Miss. 607 , 70 So. 817; Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446 , 96 So. 417 ; Lewis v. Butters Lumber Co., 199 N.C. 718 , 155 S.E. 726 ; 38 C.J. 175-176, Secs. 57-58. This duty which appellants, as timber owners, owed Mrs. Alexander and Mrs. Hunter, as landowners, also became due to appellee, as the lessee, because of his privity in estate with the landowners. H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208 , 85 So. 193, 195; 36 C.J. 108-109, Sec. 749. One on whom the law imposes a positive duty to the public or an individual cannot escape the responsibility of seeing that duty performed by delegating it to an independent contractor. H. Weston Lumber Co. v. Hibbens, 182 Miss. 669 , 182 So. 115 ; Guiguere v. Tobin Mfg. Co., Rap. Jud. Quebec, 53 C.S. 193; Wilber v. Follansbee, 97 Wis. 577 , 72 N.W. 741, 73 N.W. 559; Republic Iron Steel Co. v. Barter, 218 Ala. 369 , 118 So. 749 ; Dixie Stage Lines v. Anderson, 222 Ala. 673 , 134 So. 23 ; Alabama Great Southern R. Co. v. Killian, 17 Ala. App. 124 , 82 So. 572 ; 39 C.J. 1336, Sec. 1546; 29 A.L.R. 737; A.L.I., Agency, Secs. 214, 251. Where the work is dangerous unless precautions are taken, liability cannot be evaded by employing an independent contractor to do it. Alexis v. Pittinger, 119 Wn. 626 , 206 P. 370, 29 A.L.R. 733; Covington Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 215 , 55 N.E. 618, 76 Am. St. Rep. 375, 7 Am. Neg. Rep. 154; 39 C.J. 1331, Sec. 1540; 23 A.L.R. 1016. One who removes or destroys the fence of another is liable to respond in damages for any loss which is the natural or proximate consequence of his act. Conklin v. Newman, 278 Ill. 30 , 115 N.E. 849; Woodcock v. Calais, 68 Me. 244 ; Roby v. Reed, 39 N.H. 461 ; Gulf, etc., R. Co. v. McMurrough, 41 Tex. Civ. App. 216 , 91 S.W. 320 . Such liability extends not only to injuries which are directly and immediately caused by his act but also to such consequential injuries as according to the common experience of men are likely to result from such act. 17 C.J. 750, Sec. 81. A person injured by the tort of another is entitled to recover damages from him for all harm, past, present and prospective, legally caused by the tort. Crowell v. New Orleans N.E.R. Co., 61 Miss. 631 ; Goldschmid v. New York, 14 App. Div. 135 , 43 N.Y.S. 447; Baumann v. New York, 227 N.Y. 25 , 124 N.E. 141 ; Reisert v. New York, 174 N.Y. 196 , 66 N.E. 731 ; Code of 1930, Sec. 3421; Restatement, Torts, Sec. 910, p. 559; Restatement Torts, Sec. 929, Comment on Clause (c), p. 664; 17 C.J. 698, Sec. 123. The damages inflicted were not only unnecessary but were wanton and willful and the allowance of punitive damages was not error. Neal v. Newburger Co., 154 Miss. 691 , 123 So. 861 , 863; Hood v. Moffett, 109 Miss. 757 , 69 So. 664; Donovan v. Sallee, 19 Mo. App. 593; Milwaukee, etc., Ry. Co. v. Arms, 91 U.S. 489 , 23 L.Ed. 374; 17 C.J. 987, Sec. 284. E.M. Livingston, of Louisville, and Nichols Huff, of Forest, for appellants, in response to inquiry by the court. The sole question here involved is that of privity, in other words, is there such relationship existing between Mrs. Alexander and Mrs. Hunter as lessors and Weems as lessee that would enable Weems to recover for damages to the fence under the facts of this case, if Mrs. Alexander and Mrs. Hunter had such right, or is his right to sue appellants fixed by the lease contract? The contract or timber deed between Mrs. Alexander and Mrs. Hunter, as owners of the land, and the appellants, as purchasers of the timber, contains no stipulation whatsoever as to fence damage. Neither does the contract leasing the land to Weems contain any such provision, nor does the contract with appellee give him any right whatsoever to bring a suit against the appellants for damages to the fence. Appellee had full knowledge, or at least constructive knowledge, of the existence of the timber deed to appellants when he executed the lease with Mrs. Alexander and Mrs. Hunter. As a reasonable man appellee should have known that there was likely to be damage to the fence, and if he wanted to be protected against such damage caused, or likely to be caused by cutting and felling the trees on the land, he should have inserted in his lease contract the right to bring a suit against the appellants for such damage. In the absence of a provision in appellee's lease and a conveyance or assignment therein of the right to sue for damages appellee has no legal right to maintain this suit. He acquired only such rights as were conveyed to him in the written lease. H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208 , 85 So. 193; Lipscomb v. Postell, 38 Miss. 476 ; Jones v. Mississippi Farms Co., 116 Miss. 295 , 76 So. 880; Hartford Accident Indemnity Co. v. Hewes et al., 190 Miss. 225 , 199 So. 93 ; Mayor and Board of Aldermen of City of Brookhaven v. Baggett, 61 Miss. 383 ; Pasadena v. California-Michigan Land Water Co., 17 Cal.2d 576 , 133 A.L.R. 1186; Atkins v. Bordman, 2 Metc. (Mass.) 457, 37 Am. Dec. 100; Winslow v. Vallejo, 148 Cal. 723 , 84 P. 191 , 113 A.S.R. 349; Schwer v. Martin, 97 S.W. 12; Breckenridge v. Ormsby, 1 J.J. Marsh (Ky.), 236, 250, 19 Am. Dec. 71; 1 A.L.I., Restatement of the Law on Contracts, p. 176, Sec. 147; Rawle on Covenants for Title, 468 et seq. and notes; 19 C.J. 873, Sec. 16; 19 C.J. 939, Sec. 145; 50 C.J. 403, 406, the word Privity; 9 R.C.L. 735, Sec. 2; 9 R.C.L. 744, Sec. 12; 9 R.C.L. 745, Sec. 14; 9 R.C.L. 763, Sec. 27; 9 R.C.L. 785, Note 10; 9 R.C.L. 785, Sec. 43. O.B. Triplett, Jr., of Forest, for appellee, in response to inquiry by the court. The facts in this case can thus be reduced: Mrs. Alexander owned Blackacre in fee simple. She conveyed the timber to Fair with an easement and privilege of entering, cutting and removing the timber within three years. She thereafter conveyed an estate for years to Weems, who went into full possession on January 18, 1942. Afterwards, Fair contracted with Willis \in the spring\" to cut and remove the timber and Willis wantonly destroyed the fences on the land in exercising the easement granted to Fair. What was Fair's liability to Weems?
McGehee.

On Suggestion oe Error.

McGehee, J.,

delivered the opinion of the court on suggestion of error.

The appellee, Weems, recovered a judgment in the court below against the appellant, D. L. Fair Lumber Company, and one James Willis, for the sum of $400 actual damages and $700 punitive damages, and from which judgment the lumber company alone has prosecuted this appeal.

On a former day of the term we reversed and remanded the cause for the assessment of actual damages only, the[*216] majority of the judges being then of the opinion that punitive damages should not have been awarded as against the D. L. Fair Lumber Co.

Upon a reconsideration of the case the court has concluded that the evidence in support of the claim for actual damages is sufficient to support the verdict to the extent of $247.75, and that, therefore, a judgment should be rendered here for that amount. Now three of the judges are of the opinion that the proof justified the submission to the jury of the issue as to punitive damages against both of the defendants and that the award in that behalf should be accordingly affirmed. Hence the former opinion, reported in 15 So. (2d) 505, is withdrawn, the judgment of reversal and remand is set aside, and this opinion, affirming the judgment for actual damages to the extent above indicated and the award of punitive damages, is substituted as the decision of the issues involved.

The proof discloses that the appellant lumber company became the owner of the timber situated on certain lands which were subsequently leased by the landowners to the appellee, Weems, as a pasture. The lessee of the pasture lands paid as a consideration therefor for the first year the sum of $200 in cash and agreed to repair the fences which then enclosed the same, the cost of which repairs amounted to about $150', and he had the option to renew his lease at the end of that year. He was pasturing about 77 head of cattle in this enclosure when the lumber company employed the defendant Willis to cut and remove the timber thereon at an agreed price per-thousand feet.

When Willis undertook to cut and remove the timber, the appellee, Weems, the lessee of the pasture as aforesaid, granted him the use of his barns, advised him of the presence of the cattle in the pasture, and requested that in the event the said Willis should cut any trees on the fence, he should repair the same before leaving .the premises in order that the cattle might not escape[*217] through any broken places therein. Willis promised to do this, hut failed to comply with his agreement in that behalf. He began cutting the timber in the early part of May, causing many trees to fall on the fence and tear it down to such an extent that the cattle began escaping from the pasture. Thereupon Weems made complaint to Willis repeatedly about cutting the trees on the fence and causing his cattle to escape, and with the result that Willis took the position that he could not repair the fence day by day or week after week as he tore it down, stating that after he had finished cutting the timber he would put up the fence before leaving the premises. The cutting of the timber, however, continued over a period of three or four months, and, in the meantime, the fence was destroyed, by the falling of the trees, for a distance of from one-fourth to one-half of a mile, with intervening breaks or gaps therein, such as to permit the cattle to escape at will.

There was testimony to the effect that the lessee, Weems, employed a negro to repair the fence while the timber cutting was in progress but that Willis would not permit the negro to do' so. Complaint was also made during the month of May to the appellant lumber company with regard to the activities of the said Willis, and to which complaint the lumber company replied that “Willis has promised to be careful of the fence and to repair any damage which he causes before he leaves the premises.” The lumber company was thereafter advised that Willis had not repaired the fence, and was continuing to destroy the same by cutting timber thereon. In fact, a representative of the lumber company visited the scene and saw what was being done, but the said company continued to permit Willis to violate its own duty to the landowners and his duty both to the lumber company, the landowners, and their lessee, of using reasonable care not to unnecessarily injure the improvements on the land.

[*218] That the lumber company, having continued in its ownership' of the timber, which was being cut and removed by Willis, whether as an independent contractor or as its agent, was under a duty to the landowners, by virtue of the relationship created by the timber deed, to see to it that, in the exercise of its rights as holder of the easement to cut and removed the timber, due and reasonable care should be taken not to unnecessarily injure the property of the landowners, is supported by both reason and authority. United States v. Bostwick, 94 U. S. 53, 4 Otto 53, 24 L. Ed. 65; Jones v. Friedenburg, 66 Ga. 505, 42 Am. Rep. 86; Powell v. Dayton, etc., R. R., 16 Or. 33, 16 P. 863, 8 Am. St. Rep. 251; 62 C. J. 1092; 21 C. J. S., Covenants, Sec. 22, p. 898; 32 Am. Jur. 189, 665, 669; 1 Taylor, Landlord and Tenant (9th Ed.), p. 428; Comyns, Landlord and Tenant, 188. See also City Council of Greenville v. White, 194 Miss. 145, 11 So. ( 2d) 816. It could not delegate this responsibility to a third person in such manner as to be relieved of liability for a violation of its duty in that behalf. Moreover, the lessee of the pasture land had such an interest in the fence which enclosed the same as to entitle him to have the fence left unimpaired by any unnecessary damage to or destruction of the same, in order that it might constitute an effective enclosure for the cattle which were known to be pastured therein.

The jury was warranted in finding from the testimony, including that of some of the witnesses for the defendant, that it was not reasonably necessary for the trees to be cut so as to fall on the fence, and the jurors were entitled to use their own judgment and common experience and to reach the conclusion that standing timber adjacent to a fence may be cut in such manner as to be felled in another direction therefrom,' except in such instances where the trees happen to be leaning toward the same, —at any rate, they were justified in finding from the proof of the fact that a sufficient number of trees had fallen across the fence to destroy it for a quarter or[*219] half of a mile as complained of, that no sort of care was exercised to prevent the destruction of the enclosure, and that no proper regard was shown for the rights of the lessee of the pasture either in the destruction of "the fence or in the refusal to repair, as charged in the declaration, either during the period of the timber cutting, or thereafter; also, that no one would needlessly destroy a fence, as was done in this case, and to so great an extent with any intention of repairing it at all at so much trouble and expense as would have been entailed.

Such actual damages as we think were recoverable under the proof áre claimed to have resulted from the loss of cattle by straying from the pasture, expense of corralling the escaping cattle and renting a temporary enclosure for them, loss of sub-rentals on the pasture, and the expense incurred and time lost by the lessee in going to and from the premises in order to reduce his damages by preventing the escape and loss of more cattle from the enclosure, a majority of the judges being of the opinion that the items of such actual damages as are claimed from other considerations are not recoverable under the facts of this case.

On the question of punitive damages, the affirming judges are of the opinion, as hereinbefore indicated, that the owner of the timber standing on the land of another owes the latter the duty to use reasonable care in removing the timber so as not to injure the other’s property; and this duty is owed likewise to a tenant of the landowner so far as concerns the possession and use of tenant. The obligation is one put in or raised by the law and results from the relation of the timber owner and the owner of the land at the time of the removal of the timber, without the necessity of any contract between them so prescribing. The duty, moreover, is nondelegable, else the timber owner would have the power to place its performance in the hands of a party wholly without moral or financial responsibility and thus strip the landowner of any effective remedy for violation of the stated duty,[*220] however gross and oppressive, other than a recourse to the nonlegal preventive remedy of force and violence.

Therefore, the timber owner may not commit the work of the removal of the timber to an independent contractor and thereby escape responsibility for negligent and unnecessary injury to the property of the landowner or his tenant; and as to such injury the so-called independent contractor will be deemed the servant or employee of the timber owner, and the latter will be liable to the landowner or his tenant for negligent and unnecessary injuries to the same extent and as fully as had the damage been done by the timber owner himself'.

It is conceded by every member of the court that what has been stated in the two foregoing paragraphs is true as to actual damage negligently and unnecessarily done in the removal of the timber and that as to such actual damage the independent contractor occupies no such a status, but is an employee or agent of the timber owner, whatever the contract between them-may be. The contention is made, however, that upon the issue of punitive damages for gross or wilful negligence on the part of the person employed to remove the timber, that person will be an independent contractor acting, not for the timber owner who placed him there to remove the timber, but for himself and as his own man, if his contract with the timber owner was that of an independent contractor,— in other words, as to actual damages the person removing the timber is the agent or employee of the timber owner, but as to punitive damages he is no such agent or employee, but acts for himself alone.

As has been stated, it is the duty of the timber owner in removing the timber to do so in a manner whereby the land and the other property thereon and belonging thereto will not'be negligently or unnecessarily injured, and that he may not rid himself of this obligation by committing its performance to another. Since, then, this duty prohibits negligent performance, it prohibits for the stronger reason a grossly or wilfully negligent per[*221] formalice, and to attempt to separate them so as to make the performer the agent or employee as to negligence bnt not as to gross negligence, is no more than an attempt, in another, although perhaps more subtle form, to revive the ancient contention that the doctrine respondeat superior applies only to actual or compensatory damages, —a contention which was rejected and the contrary established in the leading case in this State, New Orleans, etc., B-. Co. v. Bailey, 40 Miss. 395, which has never been departed from in the slightest but has been reaffirmed in perhaps a hundred other cases since. We have throughout our judicial history rejected the doctrine maintained in a few jurisdictions that an employer, in order to be held in punitive damages, must have ratified the gross or wilful breach of duty done by the person employed by him, but in the case now before us, even if this were required, the facts are that the general agent of the timber owner having superior charge of such matters was- fully informed of what was being done by the so-called independent contractor, and this general agent went actually upon the ground during the month of July and confesses that he there saw that something like half a mile of this fence had been knocked down by the employee, yet nothing was done about it except to allow this employee to go on doing as he had done until in August, at which time the damage had reached about three-quarters of a mile of fence injured or destroyed. There is no room to talk about any injustice to the timber owner by the judgment or punitive damages in this case. He actually saw the damage going on, yet he put his hands in his pocket, did nothing about it, except to insist that he had no part in it — that it was being' done by an independent contractor.

Nor may escape be made by the contention that the duty which here was so wilfully and oppressively flouted was one arising by contract and that punitive damages may not be recovered for a mere contract violation. We have held, and now reaffirm it, that punitive damages[*222] may be recovered for breach of contract when the breach is attended by such gross negligence or willful wrong as to amount to a tort, Hood v. Moffett, 109 Miss. 757, 69 So. 664, L. R. A. 1916B, 622, Ann. Cas. 1917E, 410, American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761; and it needs no authority to sustain the proposition that the breaking down and destruction of another’s fence is a tort, and when done under circumstances of such gross and persistent wrong as to manifest an indifference to the consequences and of the rights of others, that it is a tort which will justify punitive damages; and'that is what the jury found, and was well supported by the evidence and finding in this case.

The verdict of the jury and judgment of the court below must, therefore, be affirmed in accordance with the views hereinbefore expressed, that is to say, as modified allowing a recovery to the extent only of $247.75 instead of $400, as actual damages, and the amount of punitive damages in the sum of $700 awarded by the jury.

Affirmed.