Gardner v. Lovegren

Citations

• 27 Wash. 356
• 67 P. 615
• 1902 Wash. LEXIS 400

Syllabus

<p>TRESPASS-RIGHT TO TREBLE DAMAGES--INSTRUCTIONS-HARM- . LESS ERROR.</p> <p>In an action to recover treble damages for tbe wilful and uillawful cutting of plaintiff’s, timber, under Bal. Code, § 5656. defendants set up the defense that they were the owners of adjoining land and had done the act by inadvertence, through a mistake as to the boundary. An instruction charged the jury that if they found defendants went upon the plaintiff’s land in good faith in the belief that it was their own, or that their going was not marked by any spirit of wantonness, wilfulness or evil design, then they must find defendants’ action was not wilful; that, before they could determine defendants’ wilfulness, they must be satisfied the trespass was attended by circumstances of bad faith and intentional wrong; that if defendants committed the trespass knowingly, or by the exercise of ordinary care could have ascertained they were trespassing, then they should find the action was wilful.</p> <p>Held, that, if the last part of the instruction was inconsistent with the preceding portions, plaintiff could not complain, because it was in his favor.</p> <p>Held, also, that, even if the instruction were erroneous, it was without prejudice, as the jury found specially that there was no wilful trespass.</p> <p>SAME-QUESTION OF INTENT.</p> <p>The statute authorizing treble damages for the wilful cutting of another’s timber being of a penal nature, intent to commit the trespass is a necessary element in order to justify the imposition of treble damages.</p> <p>SAME-ARGUMENT OF COUNSEL.</p> <p>In an action to recover treble damages for trespass, it was not error for defendant’s counsel, in his argument before the jury, to state that “the court will treble whatever actual damage you may find to have been suffered by the plaintiff.”</p> <p>SAME-SPECIAL INTERROGATORIES — FORM OF.</p> <p>In such a ease it was not error for the court to submit as a whole to the jury, instead of dividing into two questi