Opinion
No. 28301.
January 15, 1952. Rehearing Denied February 15, 1952.
Warren H. May, Louisiana, for appellant.
John H. Haley and James D. Clemens, both of Bowling Green, for respondent.
This is an action under RSMo 1949, Sec. 537.340, V.A.M.S., for the recovery of treble damages from defendant, Missouri Edison Company, because of its act in cutting down one or more ornamental shade trees on the land of plaintiff, Arthur J. Slater, Jr., located in Pike County, Missouri.
Upon a trial of the case the jury returned a verdict in favor of plaintiff, and against defendant, for the sum of $100 actual damages, whereupon the court, on plaintiff's motion, entered judgment for plaintiff for $300 or treble the amount of the verdict. Following the overruling of its motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review upon the sole question of the propriety of the court's action in rendering judgment for treble damages.
In support of its point that the allowance of treble damages was erroneous, defendant relies upon RSMo 1949, Sec. 537.360, V.A.M.S., which provides that on the trial of any action brought under Section 537.340 for trespass on realty, if it shall appear that the defendant had probable cause to believe that the land on which the trespass was committed was his own, or that the thing injured or destroyed was his own, then in that event the plaintiff shall recover single damages only.
In construing Section 537.360, the decisions hold that the term "probable cause" means such cause as would have induced a reasonably prudent person to believe that he had the right to do the act charged against the defendant as a trespass. Barnes v. Arkansas-Missouri Power Company, 220 Mo.App. 141, 281 S.W. 93. The defendant has the burden of proof upon the issue of the existence of probable cause (Sample v. Reinhard, Mo.App., 253 S.W. 180); and under the practice which has been consistently followed in this state, the ultimate decision upon the issue rests with the court and not the jury. In other words, upon this particular feature of the case the court is the judge of both the law and the facts; and when a verdict has been returned for single damages, it is then the court's duty to give judgment for either single or treble damages as the facts in evidence may warrant. Cox v. St. Louis, M. S.E. Ry. Co., 123 Mo.App. 356, 100 S.W. 1096; Chilton v. Missouri Lumber Mining Co., 144 Mo.App. 315, 127 S.W. 941.
The land in question, comprising slightly in excess of half an acre, lies a short distance east of Bowling Green at the point where Highway 29 intersects with Highway 54. From Bowling Green, Highway 54 runs somewhat northeastwardly towards Louisiana, while Highway 29 cuts in from the south in a more pronounced northeastwardly direction. The result is to leave plaintiff's tract of land in the shape of a triangle, with the apex to the east at the point of the intersection, and the base to the west along the line of adjoining land belonging to one Henrichsen. A filling station is located at the immediate point of the intersection, while the land to the rear is used as a ground for picnics. The trees in question, including a large oak tree, stood in the rear portion of the land at locations variously estimated as having been from 40 to 100 feet south of Highway 54.
The defendant, Missouri Edison Company, is a utility corporation engaged in the business of supplying electricity to communities in Pike and other counties.
The trespass which has given rise to this proceeding occurred in the course of defendant's undertaking to relocate its power line leading into Bowling Green.
Originally defendant's line had run along the south side of Highway 54 until it reached the intersection of Highway 29, where it branched off and followed Highway 29 into Bowling Green. In 1950 defendant made preparations to reroute its line so as to abandon its course along Highway 29 and have it extend instead for its whole distance into Bowling Green along Highway 54. A driveway leading out into Highway 54 had previously been constructed on the north side of the filling station; and when it was ascertained that it would be impractical to span this space without erecting a pole in the driveway itself, defendant decided to modify its project by continuing the use of its old line down Highway 29 for some 300 feet, and then cutting north with its new line either across the rear of plaintiff's land or else across the front of Henrichsen's land to a point on the south side of Highway 54, from whence it would then turn west and follow the latter highway into Bowling Green.
The whole project of relocating the line was in charge of one Arthur S. Hawkins, defendant's district superintendent. Among his responsibilities was that of seeing that the right of way was cleared for the erection of the poles. The task of securing the right of way was delegated to Roy Scott, the line foreman, who obtained permission from a representative of the state highway department to designate the points where the poles would be erected by setting stakes on a line 25 feet from the edge of the pavement. Permission was also granted to cut out and remove the underbrush and other growth along the right of way for a distance of 20 feet beyond the stakes. The actual labor of clearing the right of way was assigned to Charles M. Love as foreman over a crew of six men who were employed on the job.
The original idea had been to extend the line across the rear of plaintiff's land in diverting it from Highway 29 to Highway 54, but when the difficulty arose with respect to the trees on plaintiff's land, the plan was changed so as to have the line run across the front of Henrichsen's land.
Scott placed stakes along the proposed right of way, some of which were within one foot of the line of plaintiff's property. Whether stakes were set up across the rear of plaintiff's property was left some-what in doubt. Hawkins thought that Scott had originally set such stakes, but both Scott and Love denied that such had been the case. Love testified, however, that one of the stakes in the line of stakes was within 20 feet of the large oak tree, and that by reason of such fact he entered on plaintiff's land and cut down the tree. Whether he also cut down two smaller trees was a matter on which the parties were in dispute.
When Love was assigned the job, Hawkins accompanied him out to the right of way and gave him directions about clearing everything to a distance of 20 feet beyond the stakes. However he did not tell him to go on plaintiff's land; and as a matter of fact the portion of the right of way which Hawkins had in mind, and at which he gave Love his directions, was west of the Henrichsen property where the land was grown up with brush and timber. Love testified that at the time he cut the tree he thought it was on the right of way, but Hawkins frankly admitted that he knew that Love had made a mistake as soon as he discovered what had been done. Hawkins visited out on the job practically every day, but knew nothing of the destruction of the trees until complaint had been lodged at the company's office in Louisiana.
Defendant insists that the wrongful cutting of the trees was attributable to nothing but honest mistake on the part of Love, and by reason of such fact was not of a character to warrant the imposition of treble damages.
It may doubtless be conceded that Love's own action was the product of honest mistake growing out of his misunderstanding of what he himself was supposed to do. However Love is not the one against whom the penalty of the statute is sought to be invoked. On the contrary, it is Missouri Edison Company which is being held to account; and the question, therefore, is not whether Love, but whether Missouri Edison Company, had probable cause to believe that it had the right to cut the trees on plaintiff's land.
The conceded facts of the case furnish the inescapable answer to the question. The defendant corporation could only act through its officers and agents, and it was to be charged with the composite knowledge which had been acquired by its several officers and agents while acting within the scope of their respective duties in planning and executing the relocation of the line into Bowling Green. The fault would seem to have been primarily that of Hawkins in not making certain that Love was specifically advised of where he was to cut. But be all this as it may, the important thing is that defendant corporation, through its officers and agents, was well aware that it had no right to destroy the trees on plaintiff's land; and the court was consequently justified in rendering judgment in plaintiff's favor for treble the verdict of the jury. Curlee v. Donaldson. Mo.App., 233 S.W.2d 746.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON and GREEN, JJ., concur.