I do not subscribe to the proposition that one whose timber has been felled and removed from the land by another is entitled to more damages if the party who took the timber was in bad faith than if he acted in good faith. In that respect the prevailing opinion rendered in this case cannot be reconciled with the doctrine, which is well established by the following decisions, that punitive damages cannot be allowed in a civil action, viz.: Serio v. American Brewing Co., 141 La. 291, 74 So. 998, L.R.A. 1917E, 516; Vincent v. Morgan's La. T.R. S.S. Co.,140 La. 1027, 74 So. 541; Burt v. Shreveport R. Co., 142 La. 308, 76 So. 723; Lee Lumber Co. v. Union Naval Stores Co., 142 La. 521, 77 So. 131; Dunson v. Baker, 144 La. 167, 80 So. 238; Howell v. Vicksburg, S. P. Ry. Co., 144 La. 428, 80 So. 613; Hanna v. Otis, 151 La. 851, 92 So. 360; Selser v. Revol, 152 La. 454, 93 So. 675; Janssen Catering Co. v. Abadie, 157 La. 357,102 So. 428; Mundy v. Phillips, 157 La. 445, 102 So. 519; Spearman v. Toye Bros. Taxicab Co., 164 La. 677, 114 So. 591; Moulin v. Monteleone, 165 La. 169, 115 So. 447.
The only decision cited on that subject, in the prevailing opinion in this case, is Ward v. Hayes-Ewell Co., 155 La. 15, 98 So. 740; and the only authorities cited in that case on the subject of the measure of damages were article 525 of the Civil Code; Eastman v. Harris, 4 La. Ann. 193, and St. Paul v. La Cypress Lumber Co., 116 La. 585, 40 So. 906. Article 525 of the Civil Code merely gives to a person whose material has been used by another person in making a finished product the right to claim the finished product "on reimbursing the price of the workmanship." The next article declares that that rule does not apply when the value of the finished article greatly exceeds the value of the material. There is nothing in either of these articles of the Code *Page 117 making a distinction between the extent of the liability when the maker of the article was in good faith and when he was in bad faith. In fact, I do not consider article 525 appropriate here, or in the decision in which it was cited, where the plaintiff did not claim the privilege of taking the lumber on reimbursing the cost of manufacturing it.
In Eastman v. Harris, a raft of logs belonging to the plaintiff and being transported down the Mississippi river became stranded on the land of the defendant, and he cut up the logs, made them into fuel for steamboats, sold the fuel, and kept the price. The plaintiff was allowed the full value of the fuel, by the lower court, without deduction of the cost of converting the logs into fuel. The defendant appealed; and, in affirming the judgment, this court said: "As the plaintiff has asked an affirmance of the judgment, it is not necessary to decide whether a possessor in bad faith, under such circumstances, is entitled to compensation for the labors bestowed upon it, and by which it has been converted into a more valuable form. But we may remark that it is at best questionable. The policy of the civil law was to sanctify and uphold the right of property by discouraging and punishing wrongdoers," etc. It was thus acknowledged that the allowance of something more than mere compensation for the loss which the party whose property was taken had sustained was intended as a punishment of the wrongdoers. No such distinction, between a wrongdoer who proceeds willfully and one who proceeds negligently, can be reconciled with our jurisprudence as it stands now.
The decision in St. Paul v. Louisiana Cypress Lumber Co. seems to sustain the proposition that the measure of damages in cases like this depends upon whether the party *Page 118 taking the timber was in good or bad faith; but the decision was rendered at a time when the question of the right of the courts to inflict punishment, by granting punitive damages, in a civil action, was unsettled. For example, in Bendich v. Scobel,107 La. 242, 31 So. 703, it was said that, where the punishment of the trespasser had been submitted to and acted upon by, or was pending in, the criminal court, the civil courts would be slow to inflict punitory damages. And, in McGee v. Louisiana Lumber Co.,123 La. 696, 49 So. 475, where the court allowed as damages only the stumpage value of the timber taken by the defendant from the plaintiff's land, the court said that the case was "not a case for punitive damages." That decision, also, was rendered before this court had settled the question, in Serio v. American Brewing Co., and in the long list of similar cases which I have cited above, as to whether punitive damages, or only compensatory damages, could be allowed in an action for damages, for trespass, or for any other offense. If we adhere to the jurisprudence against allowing punitive damages, or any other than compensatory damages, the question as to whether the defendant was a wanton trespasser or was merely negligent, in a case like this, has nothing to do with the measure of damages. Trespass is a criminal offense. The only orderly way to punish a trespasser, and thereby to deter others from committing the offense — whether for profit or for mere mischief — is to prosecute the trespasser in a criminal court.
My opinion, therefore, is that the liability of the Bradford-Hutchinson Lumber Company for damages should be limited to the loss which the plaintiff actually suffered, — which was the stumpage value of his timber. In all other respects I concur in the decision rendered in this case. *Page 119