Emerson v. Turner

Wood, J., (after stating the facts). 1. The appellant contends that the Columbia Circuit Court had no jurisdiction of the subject-matter as to the timber cut from the land in Nevada County upon the authority of section 6060 of Kirby’s Digest and Jacks v. Moore, 33 Ark. 31. Section 6060 of Kirby’s Digest provides: “Actions for the following causes must be brought in the county in which the subject of the action or some part thereof is situated. # 5j< ?{c 5¡< íjí íjí iK 5}í H* * “Subdiv. 4: For an injury to real property.” In Jacks v. Moore, supra, the complaint alleged “that the defendant entered upon the following land” (describing it) “and cut the timber growing thereon, and otherwise injured the same, to the damage of the plaintiff $200.” That was a suit for trespass upon the land and injury to it. But such is not the nature of this suit. It is simply a suit for the value of timber, which appellee alleged belonged to him, and which his agent, appellant, had converted to his own use. There is no allegation that the land itself was injured or damaged, or tllat appellant had trespassed thereon in order to convert the timber. The Columbia Circuit Court had jurisdiction, under the allegations of this complaint, to render judgment for the value of timber, if any, that was converted by appellant from the land in Nevada County. . 2. The court erred in giving prayer number 2 of appellee and 'in refusing prayer number 2 of appellant. Prayer number 2 of appellee was abstract. There was no testimony tending to prove that appellant converted to his own use any of the timber of appellee on the land in Nevada County. No evidence that appellant entered upon these lands himself and cut the timber therefrom, nor that he authorized any one else to do so. There is no evidence that he sold the timber on these lands. • There is no affirmative tortious act shown on the part of appellant, by which the timber on the land in Nevada County was lost to appellee. That would be necessary before appellant could be held liable as for conversion. “Trover does not lie by a principal against his agent, unless he has converted the property of his principal to his own use or disposed of it contrary to his instructions. Trover does not lie for an omission of duty by the agent, though the property is lost by his negligence; nor does it lie where, though wanting in good faith, he has acted within the general scope of his powers.” McMorris v. Simpson, 21 Wend. 610, and other cases cited in appellant’s brief. However, since all forms of action have been abolished in this State, it would be wholly immaterial whether the loss of appellee’s timber was caused by some tortious act committed by appellant, or by some duty on his part with reference thereto which he omitted or neglected to perform. In either case, upon proper allegations and proof of the facts set up, appellant would be liable. Fordyce v. Nix, 58 Ark. 136. But here appellee has set up affirmative and positive acts on the part of appellant constituting conversion, and he has failed to prove any of these acts. It is not charged in the complaint that the timber of appellee in Nevada County was lost to appellee by reason of the negligence of appellant in failing to notify appellee, that such timber had been cut. It is not alleged that such notice would have been effectual in preventing the loss of the timber. Furthermore, even if such allegations had been made, or the complaint be treated as so amended, still there is no evidence in the record to warrant a finding that appellee lost the timber in Nevada.County because appellant failed to notify him that such timber had been removed from the land. There is an allegation that it was the duty of appellant to report depredations upon the timber, and that the cutting and conversion of the timber aforesaid was known to the appellant, and that he never reported same to appellee. But this allegation, when proved, would only go to establish negligence on the part of the appellant. The presumption would be that the principal had suffered at least nominal damages from such negligence. But the burden would still be upon -the appellee, the principal, to show that 'he sustained actual damages from such negligence, and the amount that it would require to compensate him for such damages, before he could recover for such. Tiffany on Agency, p. 398; I Clark & Skyles on Agency, 398. The evidence entirely fails to establish that appellee sustained any actual damage by reason of appellant’s negligence, if he was- negligent, in failing to notify appellee of depredations upon his timber. Before appellee could recover for the value of 'the timber cut in Nevada ‘County, it was incumbent upon him to prove that he lost the timber by reason of the failure of appellant to notify him of the cutting and removal of such t-imber. Suppose appellee had notice of the depredations upon his timber through some other source than appellant. Then the failure of appellant to give him notice could not have been the .cause of any actual damage to appellee. To justify actual or compensatory damages, the loss sustained must be the direct and proximate result of the negligence alleged. Instruction number 4 given at appellant’s request† has reference to a failure on the part of appellant to prevent a trespass upon the lands, and not to his failure to notify appellee after the trespass had been committed. It does not cover the same ground as instruction number 2, supra, given at request of appellee. The instruction under consideration allows appellee to recover of appellant “unless appellant notified appellee of said cutting and removal.” The instruction was prejudicial. The error in giving it is not waived by appellant or cured by any other instruction. It follows also that the court erred in not giving appellant’s prayer for instruction number 2. 3. The statute of limitations, under the evidence, did not bar appellee of any right he might have had to recover. There was no error in giving appellee’s prayer number 3.* 4. As it is impossible for us to determine from the evidence here what amount of the verdict represents the timber from the lands in Nevada County, we are unable to eliminate the error of the ruling of the court upon the instructions indicated. The cause therefore, for this error, must be reversed and remanded for new trial. Footnotes [†] Instruction number 4, given at appellant’s request, was as follows: “4. You are instructed that if you find from the evidence that the timber was cut on any of the lands described in plaintiffs complaint,_ and without the authority of Emerson, then you are instructed that plaintiff cannot recover for such timber so cut unless you further find from the evidence that it was Emerson’s duty to look after said land and prevent trespasses upon the same and that he was negligent in the performance of his duty..” [*] Appellee’s prayer number 3 was as follows: “3. The court instructs the jury that upon a plea of the statute of limitations filed herein they will find for the plaintiff.”