Alabama Power Co. v. Neighbors

• Decision Date: 21 August 1981
• Citation: 402 So.2d 958
• Parties: ALABAMA POWER COMPANY, v. John K. NEIGHBORS. 80-217.
• Court: Alabama Supreme Court

Page 958

402 So.2d 958

ALABAMA POWER COMPANY, v. John K. NEIGHBORS.

80-217.

Supreme Court of Alabama.

Aug. 21, 1981.

S. Allen Baker, Jr. and James A. Bradford of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, John P. Oliver, II of Oliver & Sims, Dadeville, for appellant.

Ruth Sullivan, Dadeville, Tom Radney of Radney & Morris, Alexander City, for appellee.

MADDOX, Justice.

This is a malicious prosecution action against Alabama Power Company wherein the plaintiff John Kimbro Neighbors, Jr. alleges that APCo instigated a criminal proceeding against him which resulted in his criminal indictment before the Tallapoosa grand jury on the following felony charge:

Knowingly, willfully and without the consent of the owner, entered upon the land of Alabama Power Company, Inc., a corporation, and cut and carried off timber, to-wit: pulpwood, of the value of Fifty Dollars ($50.00), the personal property of Alabama Power Company, Inc., a corporation.

Because the critical question presented in this case involves whether APCo initiated the criminal proceeding and whether there was probable cause, we set out the facts extensively.

APCo owns several hundred acres of timberland in Tallapoosa County. In November 1979 APCo discovered that someone had cut and carried away what agents testified were at least ten large, green pine trees off its property on either side of a county dirt road known as Dead Timbers Road. In the same area approximately one quarter of a mile away, APCo discovered four more of its pine trees that had been recently cut. These trees were still lying on the ground next to their stumps and were cut up in pulpwood lengths. Plaintiff, a pulpwooder by profession, lived in a house at the end of Dead Timbers Road a short distance from APCo's land where the pine trees had been cut and carried away. When the illegal cutting was discovered, APCo agents contacted the Tallapoosa County Sheriff's Department and requested help in their investigation. Jimmy Collins, Benny Vinson and Billy McCullus, APCo foresters in Dadeville, Alabama, met with Deputy Sheriff Bennie Hallman at the subject property on Sunday, November 18, to investigate the tree cutting. They counted and measured the diameters of the stumps on the subject property. Later, APCo personnel measured the distance of the stumps from Dead Timbers Road. The trees had been freshly cut. On that same day, Sunday, November 18, Jimmy Collins traveled down Dead Timbers Road to the plaintiff's house where he observed a pulpwood truck sitting in plaintiff's front yard loaded, at least partly, with freshly cut pine trees cut up in pulpwood lengths which appeared to have been cut from APCo's property. There was evidence that dead timber was also on the truck.

Early the next morning, Monday, November 19, Benny Vinson and Eugene Phillips, another power company forester in Dadeville, went back to the subject property to see if anyone was coming back to pick up the four pine trees which had been observed the previous day lying on the ground by Collins and Vinson. Vinson hid in the woods where he observed the plaintiff and his employee, Harvey Garrett, drive up in a Blazer truck to the spot where the four cut trees were lying on the ground, stop the truck, sit there for a few minutes and then leave.

After Vinson observed the plaintiff and Garrett leave the area of the four trees, he called the Sheriff's Department and spoke to a Deputy Neighbors (no relation to the plaintiff), explaining that he expected the pine logs on the plaintiff's truck were going to be taken to Langley Pulpwood Yard near Camp Hill, Alabama and requested that he meet him there. Vinson then instructed Eugene Phillips to follow the plaintiff's pulpwood truck and to get ahead of it so as to meet it when it arrived at the pulpwood yard, which he did.

Garrett drove the plaintiff's truck to Langley Yard and sold the logs in the name of the plaintiff. After the truck arrived and the wood was removed, the sheriff's deputy had the power company's pine logs set aside. Deputy Neighbors and the power company representatives talked to Harvey Garrett about the pine logs. In the presence of APCo's foresters, Benny Vinson and Eugene Phillips, Garrett advised Deputy Sheriff Neighbors that he was working for the plaintiff, it was the plaintiff's truck and all he did was drive the truck from the plaintiff's house to the wood yard. Garrett then left the yard and later found the plaintiff and explained what happened. Plaintiff went to the wood yard, walked up to Deputy Sheriff Hallman in the presence of Vinson and Phillips and allegedly said, "I'm the guilty party," or "I'm the thief." Plaintiff's version of what he said was: "I'm responsible. I'm guilty. This is my truck. My man cut the wood." The next day, Tuesday, November 20, Collins and Phillips, in the presence of Deputy Sheriff Hallman, by matching stumps with logs, concluded that at least ten of the pine logs which came off the plaintiff's truck at the pulpwood yard came from power company land on Dead Timbers Road.

At this point, an APCo Security Department representative from Anniston, Joe Kirk, was called in to investigate the alleged stealing of the APCo timber. Kirk arrived in Dadeville on Wednesday, November 21. He talked with power company forester Benny Vinson first. Kirk, in the company of Vinson, then left the power company's forestry office in Dadeville to perform his investigation. They saw the plaintiff on the highway, motioned for him to stop his vehicle, and plaintiff got out and talked to Kirk and Vinson. According to Vinson, plaintiff again stated that he was responsible for the timber's being cut and that he wanted to make a deal and pay them off and get it out of the way. Kirk replied that he was not in a position to make a deal, that his only job was to investigate the facts and that he needed to interview everybody involved. Plaintiff then responsed that if they would not make a deal, then he was not going to talk without his attorney present and he turned and got back in his truck. Apparently, changing his mind, he walked back to Kirk and Vinson, who were sitting in their car, and stated that it was his employee (Monkey Jones), using his truck and his equipment, who did the cutting of power company timber. Kirk asked the plaintiff of the whereabouts of Monkey Jones and plaintiff stated that he did not know. At this time Kirk took a written statement from the plaintiff which plaintiff would not sign, but which plaintiff introduced into evidence at trial. It reads:

November 21, 1979 I, John Kimbro Neighbors, Jr., give this free and voluntary statement to Joe Kirk, III and Bennie Vinson who have identified themselves as employees of Alabama Power Co. On Saturday of this week I sent Monkey Jones to cut pulp wood for me, I told him to go and cut wood in the Pace area and to cut wood which was damaged by the County. That night when I came home, Jones had a load of pulpwood on my truck; later that night Jones told me that he had cut some of the wood on the upper side of my road. On Monday morning me and Harvey Garrett drove up the road to look for the wood that Jones had cut. I noticed several green trees along the road and I realized that this was Alabama Power Co. timber. Later on Monday morning Garrett drove my truck to Camp Hill and sold the timber to Scott Langley Pulpwood Yard. I was not sure where it came from. I have read this statement and it is true and correct.

Witness: /s/ Joe Kirk Witness:

Neighbors read this statement and said that it is true and correct however, he refused to sign it.

Witness: (illegible)

Kirk had the plaintiff draw in his own hand a map depicting Dead Timbers Road, his house, where the cutting took place and where the four green trees were left on the ground.

In addition to interviewing the plaintiff and taking his unsigned written statement, Kirk interviewed other people, took several statements, took photographs of the cut timber and the stumps. After his investigation was completed, Kirk contacted APCo's manager of security in Birmingham who in turn called Tom Young, the then District Attorney of Tallapoosa County, Alabama. Tom Young set up an appointment with Joe Kirk in his office for the first week of December 1979. Kirk met with District Attorney Tom Young, showed him his investigation materials and asked him his advice and opinion as to whether a crime had been committed or what course of action should be taken. Tom Young testified that he told Kirk that he "thought there was probable cause ... but I would give it to the grand jury and let them make the determination...." Young took the investigation file and presented the matter to the next session of the Tallapoosa County Grand Jury. The investigation file included witness statements, photos, and the plaintiff's statement. Thereafter, the district attorney's office conducted its own investigation.

In February 1980, the Tallapoosa County Grand Jury met at Dadeville. Tom Young subpoenaed Joe Kirk and Benny Vinson to testify. Other witnesses were subpoenaed, but it is not clear if they actually testified. During the grand jury proceedings, District Attorney Tom Young and his assistant Chase directed the questions to Kirk and Vinson when they were called to testify. The actual questions and answers and documentary evidence presented in this grand jury proceeding were not revealed before or during the trial because of the warning given to the parties and their attorneys by District Attorney Tom Young regarding grand jury secrecy, citing Code 1975, § 12-16-214, et seq.

Code 1975, § 12-16-215, in pertinent part says:

No past or present ... grand jury witness ... shall wilfully ... reveal, disclose or divulge or cause to be revealed ... any knowledge or information pertaining to any grand juror's questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring...