Dollar v. McKinney

• Decision Date: 29 May 1958
• Docket Number: 7 Div. 380
• Citation: 267 Ala. 627,103 So.2d 785
• Parties: W. L. DOLLAR et al. v. Audrey S. McKINNEY.
• Court: Alabama Supreme Court

Page 785

103 So.2d 785

267 Ala. 627

W. L. DOLLAR et al. v. Audrey S. McKINNEY.

7 Div. 380.

Supreme Court of Alabama.

May 29, 1958.

Rehearing Denied June 26, 1958.

This charge was refused to defendants:

'6. Court charges the jury that if from the evidence you are reasonably satisfied that defendants were in possession of the lands complained of by plaintiff then and in that event you cannot find for plaintiff.'

J. J. Cockrell, Birmingham, for appellants.

Geo. W. Hodges, Jr., Ashville, and Starnes & Holladay, Pell City, for appellee.

LAWSON, Justice.

This suit was filed in the circuit court of St. Clair County, northern division, by Mrs. Audrey S. McKinney against W. L. Dollar, Lonnie Nick Dollar, George Crowe and G. W. Crowe.

The purpose of the suit is to recover damages for the cutting of certain timber by the defendants on lands claimed by plaintiff.

The case went to the jury on an amended complaint containing counts in trespass to realty, trespass to personalty, trover, and for the statutory penalty for cutting trees and on the defendants' plea of the general issue is short by consent.

There was a jury verdict in favor of plaintiff in the amount of $400. Judgment was in accord with the verdict. The defendants' motion for new trial was overruled.

Certificate of appeal was filed in this court on August 17, 1957. The cause was submitted here on February 7, 1958. Submission was had on the merits and on motion of the appellee, Mrs. Audrey McKinney, to dismiss the appeal.

Motion to Dismiss Appeal.

All of the grounds of the motion to dismiss the appeal are to he effect that it was not properly perfected in that none of the defendants below signed the appeal bond.

The appeal bond, the citation of appeal, and the certificate of the register all state that the defendants below took the appeal and there is nothing in the record to indicate to the contrary. The appeal bond need not be signed by the parties appellant. All that is necessary is security for the costs. McKinstry v. Thomas, 258 Ala. 690, 64 So.2d 808, and authorities cited. That requirement was met.

The motion to dismiss the appeal is without merit and is due to be and will be overruled. It is so ordered.

On the Merits.

Reversible error is not made to appear in connection with the trial court's action in refusing the affirmative instructions requested by the defendants below.

In actions for trespass and for statutory penalty for cutting trees, ownership or title may be inquired into. Aldrich Mining Co. v. Pearce, 169 Ala. 161, 52 So. 911.

Trover has been said not to be a proper form of action to try title to land. Aldrich Mining Co. v. Pearce, supra; Granade v. United States Lumber & Cotton Co., 224 Ala. 185, 139 So. 409. Cf. Williams v. Lyon, 181 Ala. 531, 61 So. 299. But the principle is well supported that constructive possession of land resulting from legal title is sufficient to support an action for conversion of timber thereon where the person severing and converting the timber was not in adverse possession at the time of severance. Landrum v. Davidson, 252 Ala. 125, 39 So.2d 662, and cases cited; Granade v. United States Lumber & Cotton Co., supra; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199. See Ford v. Bradford, 218 Ala. 62, 117 So. 429, where the real issue was a boundary dispute and counts in trespass and trover were joined with a count claiming the statutory penalty.

Admittedly a number of trees were cut and removed by the defendants George Crowe and G. W. Crowe under the direction and authorization of the defendants W. L. Dollar and Lonnie Nick Dollar from lands belonging to either the plaintiff or the defendant W. L. Dollar, who are coterminus landowners.

The plaintiff offered evidence going to show record title to the strip of land from which the trees were cut. The defendants presented testimony tending to show that the defendant W. L. Dollar had acquired that strip by adverse possession and the case was tried by the court and the parties as presenting the issue of adverse possession. See Upton v. Read, 256 Ala. 593, 56 So.2d 644. However, the evidence in regard to possession was in conflict and a jury question was presented as to whether the trees which were cut belonged to the plaintiff or to the defendant W. L. Dollar. See Dawsey v. Newton, 244 Ala. 661, 15 So.2d 271. We are not going to undertake to set out the testimony of the several witnesses who gave testimony concerning the so-called agreed line. The record is in such shape that we could not do so to any degree of accuracy. The witnesses were examined in connection with two blackboard drawings. Copies of those drawings have been included in the record by agreement, but they are of very little benefit to us, for witnesses were continually examined concerning points on the maps which we are unable to identify.

Perhaps we should repeat the oftstated rule that in considering the action of the trial court in refusing an affirmative instruction requested by a defendant, we review the evidence in the light most favorable to the plaintiff, regardless of any view we may have as to its weight, and we must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more probable. Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633; Atlantic Coast Line R. Co. v. McMoy, 261 Ala. 66, 73 So.2d 85.

But aside from what we have said above in approval of the trial court's action in refusing the several affirmative instructions requested by the defendants, there is yet another reason why we could not reverse for such refusal. These charges are all in bad form and for that reason if for no other, were refused without error. Each of the charges concludes with a direction to 'find the issues in fovor of the defendant' under the separate count in reference to which the charge was framed. For instance, the defendants' refused Charge No. 1 reads: '1. Court charges the jury that if you believe the evidence in this case it would be your duty to find the issues in favor of the defendant under County One of the Complaint as last amended.' Identical charges were requested and refused as to the other four counts of the complaint.

It has long been settled by our decisions that where a complaint contains several counts, special requested written charges which direct the jury if they believe the evidence they should find for the defendant on one or the other of said counts, are properly refused. Crocker v. Lee, 261 Ala. 439, 74 So.2d 429; Railway Express Agency v. Burns, 255 Ala. 557, 52 So.2d 177; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; Christian Benevolent Burial Ass'n v. Huff, 241 Ala. 119, 1 So.2d 390; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; South Central Tel. Co. v. Corr, 220 Ala. 127, 124 So. 294; May v. Draper, 214 Ala. 324, 107 So. 862; Roach v. Wright, 195 Ala. 333, 70 So. 271; Kress v. Lawrence, 158 Ala. 652, 47 So. 574; Alabama Iron Co. v. Smith, 155 Ala. 287, 46 So. 475; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 So. 40; Goldstein v. Leake, 138 Ala. 573, 36 So. 458; Mobile & O. R. Co. v. George, 94 Ala. 199, 10 So. 145. The reason for the rule is pointed out in the following excerpt from the opinion in the case last cited above:

'* * * While some of the charges, such as 1, 3, and 4, assert correct legal propositions, they conclude with a direction to 'return a verdict in favor of defendant' under the special and separate count in reference to which they are framed. The complaint, as amended, contains six counts, as to each of which a similar charge was separately asked. Had there been but one count, or, being several, had the change upon the effect of the evidence applied to the whole complaint, there could be no objection to such conclusion of the charge, but, when there are two or more counts, the phraseology is subject to criticism. It is calculated to impress the jury with the idea that a separate verdict must be returned as to each county, though under some they may find for the plaintiff. Its tendency is to mislead or confuse, and requires explanation. * * *' 94 Ala. 222, 10 So. 154.

Assuming that on the hypotheses stated the plaintiff was not entitled to recover, the form of the charges should have been that the jury should not find for the plaintiff, or should not find against the defendants on the stated count. Rhodes-Carroll Furniture Co. v. Webb, supra; Goldstein v. Leake, supra.

The grounds of the motion for new trial to the effect that the verdict is contrary to the great weight of the evidence were, in our opinion, overruled without error. Verdicts are presumed to be correct and no ground of a motion for new trial is more carefully scrutinized and more rigidly limited than that the verdict is against the weight of the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Smith v. Smith, 254 Ala. 404, 48 So.2d 546. Furthermore, where the trial court, as here, refuses to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell v. Nichols, 245 Ala. 274, 16 So.2d 799; Smith v. Smith, supra; Thomas v. Rogers, 256 Ala. 53, 53 So.2d 736. The court and jury heard and saw each of the witnesses testify and they were in a position to understand the testimony of the witnesses which was elicited in reference to the drawings on the blackboard. We are not so circumstanced. An examination of this record convinces us that in this case the trial judge and the jury were peculiarly advantaged to pass upon the issues of fact for determination. We are not willing to say that our judgment, based only on the printed page, is superior to that of the jury and the trial judge.

The grounds of the motion for new trial resting on the challenge that the verdict was contrary to law cannot be considered because the claimed error...