Bates v. Brevard-Woods Stave Co.

Ethridge, J., delivered the opinion of the court. The appellants sued the appellee in an action of trespass in two counts for cutting timber off certain lands described in the declaration; one count being for statutory damages of fifteen dollars per tree, and the other count for actual damages, the actual value of the trees. The number of trees cut was two hundred and fifty-eight. The action originated from the cutting by the appellee of two hundred and fifty-eight trees under the size stipulated for in the contract. The Stave Company bought of the appellants all hickory timber eight inches and over at the stump, and all other timber of other kind twelve inches and over at the stump, on a certain body of land. The contract of sale gave it a specified time in which to move the timber. The Stave Company sent its employees upon the land in question, and these laborers cut two hundred and fifty-eight oak trees less than twelve inches in diameter at the place cut; the stumps measuring [592] from eleven and one-half inches down to eight inches. The superintendent or manager of the Stave Company testified that he told his hands not to cut below twelve inches, in diameter, and. it was contended that the company was not responsible for the statutory damages, where the hands cut below twelve inches contrary to his orders. The plaintiff proved the cutting of the two hundred and fifty-eight trees in violation of the contract, but was not present at the time of the cutting, and was unable to disprove affirmatively the statement of the appellee’s agent, the superintendent, that he told them not to cut under twelve inches in diameter. The presumption of law is that every man intends to do what he does do, and in the absence of the proper showing of honest mistake, the defendant would be held to have willfully done what he did do. It is not sufficient to send out a bunch of laborers, with general instructions to cut only twelve inches and up; but it devolves upon the owner to exercise reasonable superintendence over the employees, to see that they cut the timber according to the contract and with due regard to the rights of the other party. This case falls within the principle of Clay v. Postal Telegraph-Cable Co., 70 Miss. 406, 11 So. 658. In that case, in discussing the duty of the master with reference to the superintendence of the laborers, the court said. “If Fisher was negligent in sending out a large number of ordinary laborers to clear out the way, and erect its line, over a highway ten miles jn length, even though he had instructed these laborers not to invade private property, the company was liable for the injury flowing from its agent’s negligence. The proper inquiry was, not whether Fisher was absent superintending the removal of his camp from Jackson to Clinton, but was the sending out of a gang of irresponsible laborers, without any intelligent and controlling head, with no agent of the company to perform Fisher’s duty of supervising the work, under the evidence in the case, negligence on Fisher’s part, and imputable to his principal? It could not [593] be contended that Fisher might have absolved his principal from all liability for trespasses done by a gang of ordinary laborers along or near to the highways in the state, beginning at the Alabama state line and ending at the Mississippi river, by simple absenting himself during the entire progress of the work, on any thought that his presence.was necessary at his camp. The negligence in the case supposed would not be disputed. Whether Fisher’s absence for the entire day on which this injury is alleged to have been committed, with the excuse he offered for it, disclosed his negligence, should have been presented to the jury by a proper qualification of, or addition to, the second charge of appellee.” The court having given a peremptory instruction to find against the plaintiff: as to the first count, and refusing to submit the question of whether the cutting was in good faith to the jury, we think it committed error, and the judgment is reversed, and the cause remanded. Reversed and remanded.