47 So. 48 | Ala. | 1908
This acrAon was commenced by Martha Pugh and Sery Pugh against the Union Naval Stores Oampany, a corporation, to recover damages for trespass to realty. The evidence of the first witness examined in behalf of the plaintiffs developed the fact that another person (Mamie Chapman) was a tenant in common with the plaintiffs of the land, and that they three
It is elementary that, to make the defendant corporation liable for the act of the person or persons who “boxed” the timber, it must be shown that such person or persons were at the time agents of the corporation,
But would the exclusion of the evidence assailed have accomplished Avhat the defendant really desired, to. wit, the exclusion of the evidence of the witness Smith on his direct examination? Was not the evidence brought out on the cross-examination the only foundation for getting rid of the effect of his evidence in chief, either by motion to exclude that evidence or by instructions to the jury? In this vieAV, it Avould seem that, if the action of the court in overruling the motion involved error, injury from such error is affirmative rebutted by the record. The action of the court in overruling the motion to exclude the evidence in reference to Smith’s conversation and transaction Avith McDonald at the office of defendant in Mobile” finds sufficient justification in the fact that it Avas brought out by the defendant, and the court was under no duty to exclude it on the motion of the party who brought it out, even though it might haAre properly done so. — Osborne’s Case, 125 Ala. 106, 27 South. 758; Toliver’s Case, 94 Ala. 111, 10 South. 428; Dickens’ Case, 142 Ala. 49, 39 South. 14, 110 Am. St. Rep. 17.
The fact that the taxes assessed against the defendant for the years 1902-03 and 1903-04 were paid by Gordon may not of itself be competent evidence to show that Gordon was the agent of the company, with authority
The lands on which it is averred the trespass was committed were patented to Isham Pugh, and at his death, which occurred in 1894, the plaintiffs in the cause succeeded to his title. During his lifetime Isham Pugh executed two mortgages on the lands to one Molton to secure an indebtedness due from him to Molton. The defendant offered the mortgages as evidence, and proposed “to connect said mortgages so offered in evidence, by a direct and unbroken chain, with the defendant in the cause.” The plaintiff objected to the mortgages as evidence, on the ground “that litigation had taken place, between Martha Pugh and others and the-G. W. Zimmerman Manufacturing Company, about these mortgages, and the mortgages had been canceled by said litigation.” In support of said objection, the record shows: “The plaintiffs offered in evidence the entire record of the chancery cause of Martha Pugh against C. W. Zimmerman, wherein said mortgages were decreed tO' be canceled.” The defendant admitted that the mortgages offered were the identical mortgages involved in the chancery litigation, “but objected to the introduction of the. record of said chancery suit, because, while convinced that the decree decreed the satisfaction of said mortgages and ordered their cancellation, it did not shows that the mortgagee was not entitled to possession on the face of the papers at the time of the alleged trespass in this case;” This mode of procedure was irregular. The
There was no error in the ruling of the court sustaining plaintiffs’ objection to the question, propounded to the witness: “Bid Martha Pugh ever execute to you a deed conveying 20 acres of the land involved in this suit?” Aside from the indefinite form of the question, it called for a matter of which the deed was the best evidence — secondary evidence, without laying a predicate therefor.
The defendant requested the general affirmative charge in writing, which was refused by the court. It is insisted that it should have been given, on the theory that there is no evidence whatever of a direct participation by the defendant company in any trespass; in
And now (paraphrasing a part of the opinion in the case above quoted from), suppose the defendant was engaged in the naval stores business, and as a part of its business boxed timber and gathered crude turpentine from the boxes, and carried on this business in Clarke county; and suppose, further, that it confided to a general manager or agent or superintendent the execution of this business in said county, endowed him with ample powers and means to carry on the business, to
Brewer, a witness examined by the defendant, testified that he worked during the years 1901-02 on a turpentine farm in Clarke county under Mr. Meigs; that after Mr. Meigs, Mr. Gordon came, and after Mr. Gordon came a man named Bynam; that witness boxed the timber on the Martha Pugh lands in the year 1901-02; that the boxing was done properly. “We did not girdle the trees. I worked for four years for the company; changed companies. Meigs, Gordon and Bynam were my bosses during those years, and I did not know who they were working for. Gordon was in charge when I boxed the Pugh land. * * * I saw that the trees were not boxed so as to kill them. ' * * * I worked it [the timber] part of three years under the instructions of Gordon.
The court gave the general affirmative charge requested in writing by the plaintiffs. Prom what has been said in the discussion of the defendant’s request for the affirmative charge, it is clear that the action of the court in giving the charge for the • plaintiffs was reversible err dr, as the charge invaded the province of the jury. But it is argued that the affirmative charge should have been given upon the theory of a variance between the allegations of the complaint and the proof, in that the complaint is for a continuous trespass, while fhe proof shows that the acts constituting the trespass were not continuous from day to day. The ease of Abercrombie v. Windham, 127 Ala. 179, 28 South. 387, has been cited
The judgment appealed from avíII be mrersed, and the cause remanded.
Reversed and remanded.