Batson-McGehee Co. v. Smith

Ethridge, J., delivered the opinion of the court. This cause was affirmed without an opinion on a former day of this term (95 So. 647), and a suggestion of error has been filed insisting that error was committed in such affirmance. There were two counts in the declaration, one for the statutory penalty under chapter 67, Hemingway’s Code, and the other for the actual value of the trees cut. On motion of the defendant the court required the plaintiff to elect upon which count he would proceed, and the plaintiff elected to proceed upon the count for the statutory penalty. At the conclusion of the evidence, the court instructed the jury to disregard the second count for the actual value, but that the plaintiff may either recover the statutory penalty or the value of the timber, but not both the [225] penalty and the valne of the timber separately; that the statute affixes to a tree an arbitrary value without regard to its actual value, and this arbitrary value partakes both of the nature of the penalty and also remuneration for cutting, carrying away, and converting to the defendant’s use, and that even though the jury may not believe that the plaintiff should receive the statutory penalty, yet as the true value is included in the fixed or arbitrary value, you should, if you believe from the evidence that the defendant did cut, carry away, and convert to its own use certain trees from plaintiff’s land, find for the plaintiff the actual value, if any, of such trees, which instruction is claimed to be erroneous. In our opinion the plaintiff was not required to elect between the counts, but was entitled to go to the jury and have the theory of both counts submitted for the finding of facts by the jury, and the court having erred in requiring the election, and after such requirement submitting the instruction which would have been perfectly proper if both counts had been submitted as they should have been, it was not error to give the instruction, It seems that the court decided in Therrell v. Ellis, 83 Miss. 494, 35 So. 826, that a count for actual válue was necessary. It is true the' statute embraces the actual value as well as the penalty and the evidence might be conflicting, and if the jury believed one theory of the evidence might find for the statutory penalty, and if it believed the other theory could only find for the actual value, and it is important to the right of the litigant to have both theories submitted. This court has often decided that a count for actual value might be filed with one for statutory penalty. Mhoon v. Greenfield, 52 Miss. 434; Ladnier v. Ingram-Day Lumber Co., 123 Miss. 238, 85 So. 196; Roell v. Shields, 124 Miss. 226, 86 So. 763. Counsel for appellee concedes in response to the suggestion of error that the verdict was excessive on the [226] actual value of the trees and -that the judgment should be limited to twenty-two dollars and fifty cents. The suggestion of error will-therefore be sustained in part, and the judgment corrected so as to award twenty-two dollars and fifty cents and costs. Suggestion of error sustained in part.