Cooper v. Slaughter

| Ala. | Jan 18, 1912

SOMERVILLE, J.-

— The complaint is in six counts, of which the first, third, and fifth are framed under the statute to recover the penalty for willfully and knowingly cutting five pine trees, the property of plaintiff on section 46, township 7 N., range 1 W., Washington county, Ala. The first count charges the cutting to the defendants; the second charges it to the defendants through their agents, servants, or employees; and the fifth charges that defendants caused one Bill King and one Lev Anderson to do the cutting. The second, fourth, and sixth counts are in common-law trespass, with the same variations noted, respectively, ás to the first, third, and fifth counts.

Defendants demurred to the third and fourth counts collectively, and also to the fifth and sixth counts collectively, on the grounds (1) that they “do not allege that said parties were acting within the scope of their authority;” and (2) that they “do not allege any facts to show defendants liable for any trespass by Bill King or Lev Anderson.” The demurrers were overruled, and in this there was no error. Had the third and fourth counts averred simply that the agents or servants of defendants willfully and knowingly cut the trees, or trespassed on the land, the first ground of the demurrer would doubtless have been well taken. But the averments are that defendmits did those acts through their agents or servants. This was sufficient; for, “Qui facit per alium, facit per se.” For the same reason, this ground of demurrer is still more patiently bad as applied to the fifth and sixth counts. The second ground is general, and could not, for that reason, be considered.

With respect to those assignments of error based on the rulings of the trial court on the evidence, the following principles are settled:

(1) When a party objects to a question, unless other facts are shown, this is but a conditional objection, and for overruling it the trial court cannot be put in error.

(2) The permission of leading questions, and the acceptance or rejection of evidence not strictly in rebuttal, are within the sound discretion of the trial court.

(3) The statement of one or more grounds of objection is a waiver of all other grounds not stated.

(4) Overruling' a valid objection to a question not responded to by the Avitness, or else ansAvered favorably to the objector-, is not prejudicial error.

One or another of these principles will condemn the fifth, sixth, seventh, eighth, ninth, tenth, twelfth, fifteenth, sixteenth, eighteenth, nineteenth, tAventieth, twenty-first, twenty-second, twenty-fourth and twenty-fifth assignments of error.

The ninth assignment relates to the admission in evidence of a Avritten agreement, purporting to be between J. M. Cooper, one of the defendants, and' E. M. Slaughter, “as agent for Mrs. M. E. Slaughter,” the plaintiff, and purporting to be signed by “J. M. Cooper” and “E. M. Slaughter, Agent.” The substance of the agreement was. that, to settle an existing dispute between them as to the boundary between sections 45 and 46, and to establish a correct line, each party should employ a surveyor Avho should jointly locate said line, and that they should abide by the line thus established, and that all disputes as to former lines should be thereby settled. The objections to its introduction were, in substance, that it was not shoAvn to be binding on the plaintiff ; and hence was not binding on the defendants, and was Avithout any expressed considerations. The answer to these objections is (1) that the plaintiff had already testified to the full authority of her agent, E. M. Slaughter, to represent her in the adjustment of the dispute, and that she had ratified this agreement; and (2) the mutual promise to abide by the result was a sufficient consideration for the agreement.

The agreement was evidently designed as a common-law submission for arbitration and award; and, the issue being merely a disputed boundary, no writing was. necessary. — Shaw v. State, 125 Ala. 80" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/shaw-v-state-6518465?utm_source=webapp" opinion_id="6518465">125 Ala. 80, 28 South. 390. Hence, though the agreement was in fact in writing, it could he made, on behalf of the principals, by their authorized agents without any written authority. Had this agreement been fully executed by the certification by the arbitrators of the line established by them, it seems that this would have been conclusive of the whole dispute, and would have settled the issues of this case in favor of the plaintiff, operating by way of estoppel against the defendant’s contentions. — Shaw v. State, 125 Ala. 80" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/shaw-v-state-6518465?utm_source=webapp" opinion_id="6518465">125 Ala. 80, 28 South. 390; Moore v. Helms, 74 Ala. 368" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/moore-v-helms-6511746?utm_source=webapp" opinion_id="6511746">74 Ala. 368; Burrus v. Meadors, 901 Ala. 140; 7 South. 469. A copy of a paper, purporting to be the certificate of the arbitrators as to the line established by them, is incorporated in the transcript, and marked “Exhibit C.” But it nowhere appears that the certificate was introduced in evidence; and hence we cannot consider it here for any purpose. Nevertheless the agreement was in any case competent as an admission by Cooper to show the character of Cooper’s claim to the disputed strip, and whether his asserted possession urns or had been with the intention of claiming it absolutely, regardless of the true boundary, or only in case it lay within his true boundary, and was a part of his section 45. For this was one of the decisive issues in the case as framed by the pleadings. It was also, when executed by an actual survey and location, as was the case here, competent to show the location of the true boundary, and might .be strongly persuasive, if not conclusive, upon the issue. And we may add, as long as it was acquiesced in, it would be presumed to be the true boundary.

It is now argued that the paper in question was not identified by any witness. This objection, if valid, was not made in the court below, and cannot be here considered.

The tenth assignment relates to a map of section 45 and its environments, purporting to he made by the two surveyors chosen to establish the disputed line. It may, perhaps, be conceded that this map threw no light on the issues before the jury, or at least added nothing of value to the testimony of Nichol, one of the surveyors. If so, its admission was harmless to the defendants. HoAvever, the only objection made to its introduction was that “it was made under an agreement which is not binding on the defendant.” The objection Avas not good, in view of the fact that an apparently binding agreement was actually in evidence; and other grounds of objection, if any there were, were waived.

Possession is a collective fact to which a witness may testify; hence there was no error in overruling defendants’ objection to the question to E. M. Slaughter, “Who was in actual possession of section 46,” etc? — Woodstock v. Roberts, 87 Ala. 436" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/woodstock-iron-co-v-roberts-6513564?utm_source=webapp" opinion_id="6513564">87 Ala. 436, 6 South. 349; Carl v. State, 125 Ala. 89" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/carl-v-state-6518468?utm_source=webapp" opinion_id="6518468">125 Ala. 89, 28 South. 509. Moreover, the witness had already stated that the plaintiff was in possession, and this question was only cumulative.

Plaintiff was alloAved to show a particular instance in which her agent objected to the presence on the disputed strip of an alleged trespasser who had purchased from Cooper, folloAved by an agreement permitting him to remain. Defendants’ general objection to the question was overruled. As an act of possession and control, the facts stated were relevant and competent under the issues as framed. Defendants’ motion to exclude the evidence, on the ground that plaintiff had not made out a prima facie case, was properly overruled.

The acts and declarations of J. M. Cooper, one of the defendants, with respect to the boundary between sections 45 and 46 and its proper location, were clearly relevant, as bearing npon the character of his possession of the disputed strip, and the intent with which it was held by him. Hence plaintiff was properly allowed, on cross-examination, to ask Cooper’s wife, his co-defendant, if Cooper had hired a surveyor “to run out his holdings.” ' And also to ask defendants’ witness Turner, who had surveyed section 45 at the instance of J. M. Cooper, as to the latter’s statements made and instructions given to him at the time in regard to the running of the lines. These considerations dispose of the eleventh, thirteenth, fourteenth, seventeenth, and twenty-third assignments.

Besides the general issue, the defendants pleaded specifically (2) “that they are the owners of the property described in the complaint;” (3) “that they have been in open, notorious, peaceable, adverse, and hostile possession of said property for a period of over ten years; (4) “that there has been no timber cut, as described in said complaint, beyond a boundary line acquiesced in by plaintiff and defendants as the true dividing line for a period of many years;” (5) “that they have been in adverse possession of the property described in the complaint, under color of title, for a period of over 10 years.” The bill of exceptions contains this recital: “It is admitted in open court that, for the purpose of this trial, the plaintiff admits that the defendant is the owner of section 45, township 7, range 1 W.; and the defendant admits that the plaintiff is the owner of section 46, township 7, range 1 W.; that section 46 lies north of section 45; that the land in dispute, or the line in dispute, is the line dividing and is the south boundary line of 46 and north boundary of 45; the plaintiff contending that the timber in controversy was cut on 46, and the defendant contending that it was cut on 45.”

This admission being conclusive as to the facts recited, the only remaining issue for the jury to determine, under counts 1, 3, and 5 for statutory damages, was whether the trees in question were willfully and knowingly cut north of the line that properly divides sections 45 and 46. If cut to the north plaintiff was entitled to recover, and if cut to the south the defendants were entitled to a verdict, on the undisputed evidence. It is conceded by appellants that the verdict of the jury was for statutory damages only, and not for common-law trespass. Indeed, the fact is sufficiently evident, since the verdict Avas for $50.00 (for five trees, at $10 each), and only $10 was claimed for the trespass.

Exception is taken to the giving of five written charges at the instance of plaintiff, which, for convenience, we number consecutively.

Charge 1 asserts a correct proposition of laAV, and giving it Aims not erroneous on any theory of the case.— Walker v. Wyman, 157 Ala. 478, 47 South. 1011, and cases cited.

Charge 2 asserts a correct proposition of law; for, if a disputed boundary be established by the agreement of the parties, in AAdiich they acquiesce, then each is presumed prima facie to OAvn up to the line of his side. “Deemed,” as used in this charge, is clearly the equivalent of “presumed”; nor does “acquiesce” mean necessarily only for a moment. If these terms had any tendency to mislead in these respects, an explanatory charge should have been requested. Moreover, the charge limits the presumption of OAvnership to land lying in section 46 — a fact conclusively admitted by the admission recited above.

Charge 3 asserts a correct proposition of law; there being no evidence that defendants had any color of title to any part of section 46.

Charge 4 is not erroneous, for the following reasons: (1) The plea of ownership set up in plea to the whole of section 46 described in the complaint is conclusively refuted by the admission referred to above. (2) If this admission leaves any vitality in pleas 3 and 5, and we think it does not as to the statutory counts, it was-nevertheless incumbent upon defendants to prove the pleas as framed, and this, on the undisputed evidence, they did not even pretend to do.

Charge 5, whether right or wrong, as it related only to possesison, cannot furnish a predicate for reversible error; for that issue was, by the formal admission of defendants, eliminated from consideration under the statutory counts, and by the verdict of the jury the trespass counts were disregarded. However, we think the charge is a correct statement of the law if by “disputed posesssion” is meant — as may well be the case— a visibly contested possession. And, although the words may mean only a verbally disputed possession, such a meaning will not be imputed for the purpose of putting the trial court in error. Defendants should have asked for an explanatory charge, if they feared the misleading tendency of the language used.

We find no prejudicial error in the record, and the judgment is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.