Climer v. St. Clair County Telephone Co.

• Decision Date: 15 November 1917
• Docket Number: 7 Div. 902
• Parties: CLIMER et al. v. ST. CLAIR COUNTY TELEPHONE CO.
• Court: Alabama Supreme Court

77 So. 30

200 Ala. 656

CLIMER et al. v. ST. CLAIR COUNTY TELEPHONE CO.

7 Div. 902

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Action by Mrs. T.J. Climer and others against the St. Clair County Telephone Company, for trespass to lands. Judgment for defendant, and plaintiffs appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

The gravamen of the complaint is sufficiently indicated in the opinion. The following charges were given for defendant:

(2) I charge you that unless you believe from the evidence in this case that Bowley as an agent, employé, or servant of defendant, while acting in the line and scope of his duty cut the trees described in the complaint, you cannot find for plaintiff.

(3) Before you can find for plaintiff in this case you must believe from the evidence that the trees were cut by defendant, or its agents or servants, while acting within the line and scope of their authority.

The following is the charge refused to plaintiff:

(1) If the jury believe from the evidence that Burns, the president of the St. Clair County Telephone Company, directed its agents Otis and Bowley to go out and clear the telephone lines of all timbers touching said lines, and that defendant's servants were acting within the line and scope of such instructions at the time they cut the timber complained of, then the jury must find for plaintiff under the first count of the complaint, provided the jury further find from the evidence that said timber was cut without the consent of the owners of the land.

M.M Smith, of Pell City, for appellants.

Embry &amp Embry, of Ashville, for appellee.

ANDERSON C.J.

There was proof upon the trial that the agents or servants of the defendant, while acting within the scope of their employment and under the direction of the president of the defendant company, trespassed upon the plaintiff's property by cutting saplings, limbs, etc., and breaking down the fence and that these acts were not confined to saplings or limbs upon the road bed or edge of same, but extended to the premises owned by and in possession of the plaintiffs. The evidence shows that some of the trees or saplings cut had plaintiffs' fence attached thereto, and there was proof that at some points the cutting was 35 feet from the center of the road, and which would place it on plaintiff's land even if the road was of the first grade. See Code, § 5768, as amended by the Acts of 1911, p. 390. The defendant's president denied directing the servants to trim up along the telephone line, and claims that he told them to trim up along the edge of the public road, but this was contradicted by the witness Otis Bowley, who says they were instructed to cut out all timber along the telephone line which came in contact therewith and regardless of where it was, and that they were not warned to keep off of private property until after the...