May 4, 1915. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant.
The complaint alleges that the plaintiff at the times hereinafter mentioned was owner of all the pine timber, of certain dimensions, on the tract of land therein described.
That on or about the first day of January, 1911, the defendant entered upon the said tract of land and wilfully, wantonly, and maliciously, cut and removed therefrom, the greater part of plaintiff's timber, to his damage five hundred dollars as his actual damages, and two thousand dollars as punitive damages.
The following statement appears in the record:
"The answer (which for certain reasons counsel have agreed shall not be set out here) admitted the cutting of a certain amount of timber, valued at $111, but denied that the cutting was done wilfully, maliciously or wantonly, and also set up the correspondence which appears later in this *Page 72 case between the plaintiff and the defendant, in the effort to support its contention that the cutting was a mere inadvertence, and also in the effort to limit its damage."
Before the trial of the case the defendant's attorneys offered to allow judgment in favor of the plaintiff for one hundred and eleven dollars and costs, which tender was refused.
The jury rendered a verdict in favor of the plaintiff for six hundred dollars and the defendant appealed upon exceptions, which will be reported.
First exception: When the offer was refused, it was deemed to have been withdrawn and could not be given in evidence. Code of Civil Procedure, sec. 424. Therefore, it would have been erroneous for his Honor, the presiding Judge, to have considered it upon the motion for a nonsuit.
Furthermore, testimony was afterwards introduced, both by the plaintiff and the defendant, tending to show that the plaintiff was entitled to damages and that the motion for nonsuit was properly refused.
Where an order refusing a motion for nonsuit was erroneous, but testimony was afterwards introduced tending to sustain the allegations of the complaint, the Supreme Court will not reverse such order.Hicks v. R.R., 63 S.C. 559, 41 S.E. 753.
Second exception: In addition to the reason assigned by his Honor, the presiding Judge, it appears from the testimony that the defendant wilfully converted the timber, which it had cut, to its own use, after ascertaining the fact that it belonged to the plaintiff.
Third exception: Even conceding that Hunt's testimony was erroneously admitted, in the first instance, testimony was subsequently introduced tending to show that there was a basis for his opinion, as to the value of the timber. *Page 73
Where a fact is first proved by incompetent testimony, and afterwards by proper evidence, the error in admitting the first evidence is harmless. Garick v. R.R., 53 S.C. 448,31 S.E. 334, 69 Am. St. Rep. 874.
Fourth exception: There is nothing in the case tending to show how much of the verdict was for actual damages, and what part thereof was for punitive damages.
Fifth exception: What has already been said disposes of this exception.
Sixth exception: If a Judge in refusing a motion for nonsuit indicates his opinion on the facts it is not in violation of sec. 26, art. V of the Constitution, which provides that "Judges shall not charge juries in respect to matters of fact, but shall declare the law."
Seventh exception: Waiving the objection that the exception is too general, we are unable to discover any facts to sustain the proposition for which the appellant contends.
Eighth exception: What we said in disposing of the seventh exception is applicable to this exception.
Judgment affirmed.