Floyd v. Montgomery Lumber Co.

January 21, 1919. The opinion of the Court was delivered by This action was for damages to real estate, for cutting and removing timber therefrom, and other acts of trespass. Plaintiffs claimed that they owned four undivided thirteenths of the land and timber. The answer was a general denial, and that the defendant was the owner of the timber and trees and other easements on said lands, and that they were the owners of nine undivided thirteenths of timber and trees and necessary rights of way and easements, and that they only took their interest from said lands, leaving the plaintiffs their undivided interest still, on said property, doing this after negotiations had failed for the purchase of plaintiffs' claim. The cause was tried before Judge Rice, and a jury, at the April term of Court, 1918, for Horry county, and the jury returned a verdict in favor of plaintiffs for $3,000 actual and $500 punitive damages. From this judgment defendant appeals.

Exception 1 alleges error in the admission of certain letters written by defendant to plaintiffs' attorneys and letters written by plaintiffs' attorneys to the defendant. Defendant contends that these letters should have been excluded as an offer of settlement or compromise. This exception cannot be sustained, as the letters and correspondence were written long before any suit was brought, or as far as record discloses, was ever contemplated or thought to be necessary. While this Court has held, and reiterates the doctrine, which is so wholesome, that —

"The policy of the law is to encourage parties to settle out of Court. Therefore, they are not to be prejudiced in subsequent litigation by proof of unsuccessful efforts to settle."Machine Co. v. Johnston, 102 S.C. 130, 86 S.E. 489.

These letters do not show an offer to compromise nor anything in relation thereto. They give notice of title, and offer to sell, and admission of defendant of title. At that time, no timber had been cut, and there was no dispute as to the property rights between the parties. Later, when the alleged trespass was made, it was competent to go to the jury in an action for actual and punitive damages, that these acts were committed after full notice of plaintiffs' claim. This exception is overruled.

Exception 2, alleging error in excluding the evidence of Johnson Floyd, is overruled. It was clearly obnoxious to section 438 of the Code of Civil Procedure and under Jones v. Kelly, 94 S.C. 349, 78 S.E. 17.

Exception 3, as to admitting tax duplicates of the county treasurer: This is overruled, as being harmless as witness, Davenport, testified he had paid taxes on the land for a number of years for the plaintiff, and there was other evidence that the heirs at law, plaintiffs herein, of Augustus Floyd, had been paying the taxes for a number of years, and the tax duplicate was competent to show in whose name the property was listed, and amount of taxes assessed.

Exceptions 4, 5 and 6 are overruled as being without merit. There was ample evidence to submit the case to the jury for their determination on these issues, and it would have been error on the part of the Court not to have done so.

Appellant's remaining exceptions complain of error in his Honor's charge, and as to the liability and measure of damages. Taking the Judge's charge, as a whole, we see no error. There was nothing in it that was prejudicial to the appellant, and we see no reason why the judgment of the Circuit Court should be disturbed. All exceptions are overruled.

Judgment affirmed.

MESSRS. JUSTICES HYDRICK, FRAMER and GAGE concur.

MR. CHIEF JUSTICE GARY did not sit.