Alabama Power Co. v. Bodine

• Decision Date: 22 October 1925
• Docket Number: 8 Div. 788
• Citation: 213 Ala. 627,105 So. 869
• Parties: ALABAMA POWER CO. v. BODINE.
• Court: Alabama Supreme Court

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.

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 Brantley Case, supra, was departed from, and the rule declared that, the statute being highly penal, its penalties are directed to him who commits the forbidden act himself, or causes another to do it by his command or authority. He must be accessory to the act as under penal statutes generally. In cases of master and servant, the master may in person direct the cutting, or he may give instructions to cut specific trees, or to cut trees of a class known to him to be outside his grant or license, or within a zone he knows he has not the right to enter, or he may knowingly acquiesce in such cutting. In all such cases he may be a participant in a cutting "willfully and knowingly" within the statute. But, if the servant is directed to cut trees of a class coming within the master's easement and in the selection of the trees to be cut the servant negligently or willfully goes outside his instructions, without the knowledge of the master, the master becomes liable by appropriate action for common-law damages, but not for the statutory penalty.

The penalty of the statute is without reference to actual injury the same for a mere sapling as for a valuable tree. It is preventive; aimed at the intentional wrongdoer, not one whose relation is that of employer merely, and liable, as such, for actual damages under the doctrine of respondeat superior. This rule is now firmly established in our jurisprudence. Rudolph v. Holmes, 201 Ala. 461, 78 So. 839; Evans Bros. Cons. Co. v. Steiner Bros., 208 Ala. 306, 94 So. 361; McConnell v. Free, 206 Ala. 83, 89 So. 170; Ford v. Bradford, 210 Ala. 48, 97 So....