Huling v. Henderson

Opinion by Mr. Justice Mitchell, The learned judge put before the jury very clearly three views of the case for their consideration. First, that if the defendant trimmed the trees with the permission of the person who he thought had authority, and the plaintiff saw him doing it and made no objection, the jury might find in defendant’s favor, unless he killed the trees by carelessness and want of skill. Defendant certainly has no right to complain of this, it was more favorable to him than he was entitled to ask. If Kelly had in fact no authority, permission from him did not excuse the trespass, no matter what defendant thought. Secondly, if the defendant by careless and unskillful trimming killed the trees, he was responsible for such sum as would [560] make compensation ; and, thirdly, if however he willfully and intentionally killed them, then the jury mig'ht give the fullest damages warranted by the evidence, “ the highest compensatory damages, measured by the severest rule.” The law as thus laid down is not only correct but substantially unchallenged. The general rule is compensation, but exemplary or vindictive damages may be given for wanton and intentional violation of rights, or circumstances of aggravation or outrage: McCarthy v. De Armit, 99 Pa. 63; R. R. Co. v. Rosenzweig, 113 Pa. 519, 544; R. R. Co. v. Lyon, 123 Pa. 140. The assignments of error do not realty question the correctness of the charge as matter of law, but only its applicability to the evidence in the case. But of this there cannot be any doubt. Even on the defendant’s theory that he was authorized by Kelly as representative of the Fernwood Land Association he was nevertheless liable for any injury resulting from his negligent performance of a self-imposed task. One who undertakes any work impliedly assumes that he will do it with ordinary-skill and care, and becomes liable to make compensation for not doing so. The third view put by thedearned judge to the jury, is however the pinch of the case. Appellant’s counsel has argued with great earnestness that the evidence did not warrant the submission to the jury of the question of exemplary damages. A detailed review would not be profitable. The evidence tended to show that the trees were trimmed very severely, and at an improper season, and that of all those trimmed, only those died that were in the way of defendant’s view, and which he may therefore have had a motive in killing. It may be conceded that these facts, although perhaps suspicious, would not of themselves make out a case of wanton or willful destruction, but when they were followed by the testimony of Brown that defendant asked him to so trim the trees as to kill them, all the preceding evidence became susceptible of a different construction, and we cannot say that the jury might not properly view defendant’s acts as willful and their consequence as intended. Certainly the learned judge was justified in submitting that matter to them. If any injustice has been done to defendant it was by the jury, not by the court, and is not for us to correct. The learned judge also instructed the jury that the extent of [561] plaintiff’s title was immaterial, as it was sufficient to maintain the action. We find nothing on the record to show that this was error. Plaintiff bought his land by metes and bounds referable to a town plot calling for a street. Prima facie his title extended to the middle of the street, and there is nothing in the very meager evidence before us to show that as against his grantors he did not have such an interest in the soil on which the trees stood as would sustain his action, even though the borough authorities never accepted the streets on the town plot as public highways. We do not find any misstatement of the evidence in the sixth assignment. The learned judge stated the extremes of the cost of replacing the trees as testified to by the witnesses, the highest and the lowest.- Whether the witness who gave the highest estimate was to be relied on or not was for the jury. The objection to the receipt of the testimony of plaintiff’s wife as to the extent of the damage was very general, and when the learned judge suggested that she could be cross-examined as to her means of knowledge, the suggestion- appears to have been accepted, and no motion was afterwards made to strike out her testimony. As the plaintiff himself had been allowed to estimate the damage at the same sum, the error even if clearer than it is, would not be sufficient to justify a reversal, in a case where the verdict shows that the jury were not governed by it. Judgment- affirmed.