Cooper v. Slaughter

Decision Date18 January 1912
Citation175 Ala. 211,57 So. 477
PartiesCOOPER ET AL. v. SLAUGHTER.
CourtAlabama Supreme Court

Appeal from Circuit Court, Washington County; Samuel B. Browne Judge.

Action by Mary E. Slaughter against J. M. Cooper and another in trespass and for the statutory penalty for cutting trees. Judgment for plaintiff, and defendants appeal. Affirmed.

The pleadings are sufficiently noted in the opinion. The following are the assignments of error referred to in the opinion: (5) In overruling defendants' objection to the following question, put to the witness Mary E. Slaughter, in the management of certain lands in this county. (6) "Did you send Mr. Slaughter here to Mobile, * * * and to take what steps as was necessary to adjust that dispute?" (7) To Bill King: "Did you ever cut any pine trees?" (8) To the same witness: "As a matter of fact, did not Mr Slaughter tell you that the line was a great way up?" (9) Set out in opinion. (10) The map. (12) Question to E. M Slaughter: "Did you ever take any steps to keep trespassers off this disputed zone?" (15) To witness Pelham: "You are the owner of some adjacent land south of section 45, land that adjoins section 45 on the south?" (16) To the witness Coates: "Did you ever hear of Capt. Cooper claiming some land on the south end of section 45, in the town of St. Stephens?" (18) To Mrs Cooper: "Have you ever claimed that the south boundary line of section 45, as you now claim it, was incorrect?" (19) To the same witness: "Did you, or Capt. Cooper, so far as you know, go to Mobile for the purpose of employing a lawyer to reclaim the property that was given to you on the south part of section 45?" (20) To the witness Turner: "When was that, Mr. Turner; about when?" (21) Same witness: "Did Mrs. Cooper know of your employment?" (22) To the same witness: "Mr. Turner, did you ever hear anything of an old line Mr. Cooper claims as having been recognized for a number of years?" (24) Same witness: "Now, don't you remember exactly when it was; that is, to the best of your judgment, how long it has been?" (25) To the witness Williams: "Did Capt. Cooper ever tell you that you must pay him rent for the place on which you are living?"

The following charges were given for the plaintiff: (1) "If the jury believe from the evidence that the defendant J. M. Cooper made an agreement with the plaintiff to have the line dividing the northern portion of section 45 and the southern portion of section 46, township 7, range 1 west, ascertained by a survey, the jury may look to such an agreement, in connection with all the other evidence, in determining whether the possession of the defendants has been adverse or not." (3) "The court charges the jury that if two adjacent landowners claim up to a certain line, believing it to be the true line, and intending to claim only to the true line, wherever the true line may be, and it afterwards develops that the line to which they claim is not the true line, then their holding is not adverse." (2) "The court charges the jury that if they believe from the evidence that the boundary line in question was in dispute, and that the adjoining owners caused said line to be established, and that they acquiesced in said line, then the plaintiff would be deemed to be the owner of all lands north of the line so established, lying in section 46, township 7, range 1 west." (4) "If you believe from the evidence that the strip of land in question is in section 46, township 7, range 1 west, Washington county, Ala., then you cannot find that the defendants, or either of them, was in the adverse possession, unless you are reasonably satisfied from the evidence that such possession was actual." (5) "The court charges the jury that, before you can find for the defendant under pleas numbered 2, 3, and 5, you must be reasonably satisfied from the evidence that the defendants were in possession of all of section 46, township 7, range 1 west, in Washington county, Ala."

Fitts & Leigh and Gordon & Eddington, for appellants.

Turner, Wilson & Tucker, for appellee.

SOMERVILLE J.

The complaint is in six counts, of which the first, third, and fifth are framed under the statute to recover the penalty for willfully and knowingly cutting five pine trees, the property of plaintiff on section 46, township 7 N., range 1 W., Washington county, Ala. The first count charges the cutting to the defendants; the second charges it to the defendants through their agents, servants, or employés; and the fifth charges that defendants caused one Bill King and one Lev Anderson to do the cutting. The second, fourth, and sixth counts are in common-law trespass, with the same variations noted, respectively, as to the first, third, and fifth counts.

Defendants demurred to the third and fourth counts collectively, and also to the fifth and sixth counts collectively, on the grounds (1) that they "do not allege that said parties were acting within the scope of their authority;" and (2) that they "do not allege any facts to show defendants liable for any trespass by Bill King or Lev Anderson." The demurrers were overruled, and in this there was no error. Had the third and fourth counts averred simply that the agents or servants of defendants willfully and knowingly cut the trees, or trespassed on the land, the first ground of the demurrer would doubtless have been well taken. But the averments are that defendants did those acts through their agents or servants. This was sufficient; for, "Qui facit per alium, facit per se." For the same reason, this ground of demurrer is still more patently bad as applied to the fifth and sixth counts. The second ground is general, and could not, for that reason, be considered.

With respect to those assignments of error based on the rulings of the trial court on the evidence, the following principles are settled:

(1) When a party objects to a question, unless other facts are shown, this is but a conditional objection, and for overruling it the trial court cannot be put in error.

(2) The permission of leading questions, and the acceptance or rejection of evidence not strictly in rebuttal, are within the sound discretion of the trial court.

(3) The statement of one or more grounds of objection is a waiver of all other grounds not stated.

(4) Overruling a valid objection to a question not responded to by the witness, or else answered favorably to the objector, is not prejudicial error.

One or another of these principles will condemn the fifth, sixth, seventh, eighth, ninth, tenth, twelfth, fifteenth, sixteenth, eighteenth, ninteenth, twentieth, twenty-first, twenty-second, twenty-fourth, and twenty-fifth assignments of error.

The ninth assignment relates to the admission in evidence of a written agreement, purporting to be between J. M. Cooper, one of the defendants, and E. M. Slaughter, "as agent for Mrs. M. E. Slaughter," the plaintiff, and purporting to be signed by "J. M. Cooper" and "E. M. Slaughter, Agent." The substance of the agreement was that, to settle an existing dispute between them as to the boundary between sections 45 and 46, and to establish a correct line, each party should employ a surveyor who should jointly locate said line, and that they should abide by the line thus established, and that all disputes as to former lines should be thereby settled. The objections to its introduction were, in substance, that it was not shown to be binding on the plaintiff; and hence was not binding on the defendants, and was without any expressed considerations. The answer to these objections is (1) that the plaintiff had already testified to the full authority of her agent, E. M. Slaughter, to represent her in the adjustment of the dispute, and that she had ratified this agreement; and (2) the mutual promise to abide by the result was a sufficient consideration for the agreement.

The agreement was evidently designed as a common-law submission for arbitration and award; and, the issue being merely a disputed boundary, no writing was necessary. Shaw v State, 125 Ala. 80, 28 So. 390. Hence, though the agreement was in fact in writing, it could be made, on behalf of the principals, by their authorized agents without any written authority. Had this agreement been fully executed by the certification by the arbitrators of the line established by them, it seems that this would have been conclusive of the whole dispute, and would have settled the issues of this case in favor of the plaintiff, operating by way of estoppel...

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