Alabama Power Co. v. Bodine, 8 Div. 788

CourtSupreme Court of Alabama
Writing for the CourtBOULDIN, J.
Citation213 Ala. 627,105 So. 869
PartiesALABAMA POWER CO. v. BODINE.
Decision Date22 October 1925
Docket Number8 Div. 788

105 So. 869

213 Ala. 627

ALABAMA POWER CO.
v.
BODINE.

8 Div. 788

Supreme Court of Alabama

October 22, 1925


Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Tempie J. Bodine against the Alabama Power Company and the Dixie Construction Company. From a judgment for plaintiff against the Alabama Power Company, that defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6 (Code 1923, § 7326). Reversed and remanded.

Martin, Thompson, Foster & Turner, of Birmingham, and Street, Bradford & Street, of Guntersville, for appellant.

John A. Lusk, of Guntersville, for appellee.

BOULDIN, J.

Count 1 of the complaint is to recover the statutory penalty for cutting trees "willfully and knowingly, without the consent of the owner." Code, § 10371. Count 2 is in trespass, claiming damages for cutting the timber. [105 So. 870]

Plaintiff conveyed to Alabama Power Company a right of way 100 feet in width across her lands for the construction and maintenance of a high-voltage electric transmission line. The right of way deed carried "the right to cut and keep clear all trees and undergrowth and other obstruction on said strip and danger trees adjacent thereto where necessary."

The trees complained of were cut outside of and adjacent to the right of way. Whether they were "danger trees" within the meaning of the conveyance, and, if not, whether they were cut "willfully and knowingly" under the statute, were the chief issues of fact presented in the evidence.

The Alabama Power Company gave an order to Dixie Construction Company, a corporation, to construct 19 miles 22 KV line to serve the towns of Guntersville, Albertville, and Boaz "in accordance with and upon the terms and conditions of that certain contract between this company and your company, dated January 20, 1919, at an estimated cost of $47,800." This order was accepted.

It appears the line was constructed by and under direction of Mr. A.E. Boazman, general foreman of Dixie Construction Company. He got his authority from the superintendent of his company, who gave general orders for the clearing of the right of way, did not specify any special trees to cut, but directed the cutting of any "danger timber or any timber dangerous to the operation of the line." The actual cutting of the timber was by direction of Mr. S.B. Cowden, crew foreman, acting under like general orders to cut "danger trees" on lands adjacent to the right of way.

It further appears from answers of Alabama Power Company to interrogatories propounded under the statute that Dixie Construction Company had general instructions to "cut all trees or saplings outside the 100-foot strip that would injure or endanger, by shading, falling, or otherwise, the transmission lines and telephone lines" being constructed. Pay for this service was included in the contract price. It further appears that no managing officer of Alabama Power Company had any personal direction of the selection and cutting of the trees complained of, and that no knowledge of the cutting of such trees was obtained until notice of a claim therefor was given on behalf of plaintiff.

The major question for decision is whether appellant, Alabama Power Company, was entitled to the affirmative charge on count 1, claiming the statutory penalty, upon which the verdict was rendered.

As early as 1881 the rule was declared, and is now firmly established, that, under the doctrine of respondeat superior, the master is liable in damages for the torts of the servant committed while acting within the line and scope of his employment, whether through negligence or the wanton or willful act of the servant. Gilliam v. S. & N.A.R.R. Co., 70 Ala. 268.

In Postal Telegraph Co. v. Brantley, 107 Ala. 683, 18 So. 321, and Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 So. 266, this rule was declared applicable in actions for the statutory penalties for cutting trees.

But in Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 41 L.R.A. 650, 67 Am.St.Rep. 32, after a review of the authorities in this and other states, the rule declared in the...

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19 practice notes
  • Wood v. Holiday Inns, Inc., No. 74-1753
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 17 Febrero 1975
    ...alleged principal reserves the right of control over the conduct and activities of the purported agent. Alabama Power Company v. Bodine, 213 Ala. 627, 105 So. 869 (1925). The distinction between 'authoritative direction and control,' on one hand, and 'mere suggestions as to detail,' on the ......
  • Kourik v. English, No. 34278.
    • United States
    • United States State Supreme Court of Missouri
    • 5 Enero 1937
    ...and servant, there are cases which have said that such relation may exist between corporations. [Alabama Power Co. v. Bodine (Ala.), 105 So. 869, but see also Alabama Power Co. v. Key (Ala.), 140 So. 233; McWilliams v. Detroit Central Mills Co., 31 Mich. 274.] Both of these cases make a pos......
  • Alabama Power Co. v. Emens, 8 Div. 505.
    • United States
    • Supreme Court of Alabama
    • 1 Marzo 1934
    ...and in this sense the Twin City Electric Company, under the doctrine above stated, was defendant's agent. Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869; Sanders v. Gernet Bros. Lumber Co., 221 Ala. 469, 129 So. 46. The affirmative charges, requested by the defendant, were therefore......
  • Scott v. Parker, 6 Div. 876
    • United States
    • Supreme Court of Alabama
    • 14 Abril 1927
    ...on the trial. Collins v. M. & O.R. Co., 210 Ala. 234, 97 So. 631. The evidentiary effect thereof is contained in Ala. Power Co. v. Bodine, 213 Ala. 627, 105 So. 869. The bill of exceptions, so far as it discloses the action complained of, was taken after the trial was entered upon. That is,......
  • Request a trial to view additional results
19 cases
  • Wood v. Holiday Inns, Inc., No. 74-1753
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 17 Febrero 1975
    ...alleged principal reserves the right of control over the conduct and activities of the purported agent. Alabama Power Company v. Bodine, 213 Ala. 627, 105 So. 869 (1925). The distinction between 'authoritative direction and control,' on one hand, and 'mere suggestions as to detail,' on the ......
  • Kourik v. English, No. 34278.
    • United States
    • United States State Supreme Court of Missouri
    • 5 Enero 1937
    ...and servant, there are cases which have said that such relation may exist between corporations. [Alabama Power Co. v. Bodine (Ala.), 105 So. 869, but see also Alabama Power Co. v. Key (Ala.), 140 So. 233; McWilliams v. Detroit Central Mills Co., 31 Mich. 274.] Both of these cases make a pos......
  • Alabama Power Co. v. Emens, 8 Div. 505.
    • United States
    • Supreme Court of Alabama
    • 1 Marzo 1934
    ...and in this sense the Twin City Electric Company, under the doctrine above stated, was defendant's agent. Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869; Sanders v. Gernet Bros. Lumber Co., 221 Ala. 469, 129 So. 46. The affirmative charges, requested by the defendant, were therefore......
  • Scott v. Parker, 6 Div. 876
    • United States
    • Supreme Court of Alabama
    • 14 Abril 1927
    ...on the trial. Collins v. M. & O.R. Co., 210 Ala. 234, 97 So. 631. The evidentiary effect thereof is contained in Ala. Power Co. v. Bodine, 213 Ala. 627, 105 So. 869. The bill of exceptions, so far as it discloses the action complained of, was taken after the trial was entered upon. That is,......
  • Request a trial to view additional results

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