Roell v. Shields , 124 Miss. 226 ( 1920 )

Holden, J.,

delivered the opinion of the court.

The appellee, Shields, sued the appellant Eoell, and recovered judgment for both the penalty and the actual value as damages for cutting the trees of the appellee. The appellant complains that the court erred in permitting the plaintiff to recover both the penalty and the actual value of the trees. The point is well taken and the judgment must be reversed.

The rule that the owner cannot recover both the'penalty and the actual value of the trees cut has been expressly announced by this court in two cases. In 1876 it was so held in Mhoon v. Greenfield, 52 Miss. 434. The court then had before it the same statutes in the Code of 1871 prescribing the .penalty for the cutting of trees that are now sections 4977 and 4989, Code of 1906 (Hemingway’s Code, sections 3246 and 3258), the .latter section having, as did the statute of 1871, the provision therein, to wit, “and a recovery of any penalty herein given shall not be a bar to any action for further damages.”

With the same statutes before it, this court, following the Mhoon Case, supra, again held in Ladnier v. Ingram Day Lumber Co., 85 So. 196, a decision rendered July 12, 1920, that it was error to permit the owner to recover both the penalty and the actual value of the trees cut. The interpretati.cn. of the statute seems to have gone upon the reasoning that the statute fixes an arbitrary value on the cut tree without regard to its intrinsic value, and that the penalty therein prescribed partakes both of the nature of a punishment and a remuneration for the tortious act. Therefore the owner must eléct to recover either the penalty or the actual value, but he cannot recover both.

It is argued by counsel for the appellee that the construction placed upon the statute by this court is erroneous and Avill lead to unintended results, where the tree cut is of greater value than the statutory penalty; that such an interpretation, in effect, destroys the penalty or punishment intended by the statute. This may be true; but, if so, it has been brought about on account of the increased value, of trees in recent years. For this reason what would have been a penalty or punishment to the trespasser for cutting trees fifty years ago, when the statute avus enacted, may not now be a punishment, because the actual value of a tree may be greater now than the penalty prescribed for the wrongful cutting. However, this is a matter that can only be remedied by the legislature, and does not concern us. ^

Appellee’s counsel further contends that the rule against the recovery of both the value and the penalty is wrong because of the provision in section 4989, Code of 1906 (Hemingway’s Code, section 3258), which reads:

“And a recovery of any penalty herein given shall not be a bar to any action for further damages.”

It is contended that this provision gives the right to the owner to recover the penalty, and also the actual value as “further damages.” We do not so understand the statute. This court, having before it the particular provision referred to, has twice expressly held in the past forty years that the owner could not recover both the value and the penalty for the tree cut. The provision means that the owner may recover further damages outside of the penalty prescribed, and since it is held that the penalty is an arbitrary valuation of the cut tree, or we may say includes the value, there are no “further damages” as to the value of the tree to he recovered. Evidently “further damages” refers to damages other than the value of the tree, such, for instance as are contemplated by chapter 143, Code of 1906 (Hemingway’s Code, chapter 67), on trespasses.

The appellee suggests that we have overlooked Miller v. Wesson, 58 Miss. 833. Counsel is mistaken in this. That casé is not in point, because it deals with the question with reference to joining in the same declaration two counts, one for the actual value, and the other for the penalty for the cutting of trees. Counsel cites the case of Fordney Co. v. Parker, 109 Miss. 452, 69 So. 290, and urges the application here of the rule announced there. But this case is not in point, for the reason that the court was dealing with a different section of the Code, to wit, section 4988, Code of 1906 (Hemingway’s Code, section 3257), which provides against setting out fires,, etc.

We are constrained to follow the rule as announced in the Mhoon and Ladnier Cases, supra. Therefore the judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.