Ellard v. Goodall

• Decision Date: 18 November 1920
• Docket Number: 2 Div. 728
• Citation: 87 So. 196,204 Ala. 644
• Parties: ELLARD v. GOODALL.
• Court: Alabama Supreme Court

87 So. 196

204 Ala. 644

ELLARD v. GOODALL.

2 Div. 728

Supreme Court of Alabama

November 18, 1920

Appeal from Circuit Court, Perry County; B.M. Miller, Judge.

Action by D.H. Ellard against Thomas Goodall for the statutory penalty for cutting 247 pine trees in trover for the conversion of the same and in trespass. Judgment for plaintiff in an insufficient sum, and he appeals. Affirmed.

In an action in trespass and trover and for the statutory penalty for cutting trees, evidence that they were not removed from plaintiff's land, but were used in constructing a causeway the construction of which was authorized by a timber deed, was admissible on the question of conversion and as bearing on the amount of damages.

The timber contract and the pleading, together with the evidence will be found in former report of this case. 203 Ala. 476, 83 So. 568. The other facts sufficiently appear from the opinion, with the following exceptions: The remarks of John Watts were sought to be proven by plaintiff by the witness Ves Holbron to the effect that at the time of the cutting of some of the pine saplings some of the men said, "Let's not cut these trees, boys," and that John Watts, the woods boss of the defendant, said, "Go ahead, boys, and cut it; he will raise sand about them, but go ahead and cut them." The following charges were given for the defendant:

(4) If you believe from the evidence that D.H. Ellard consented for the defendant, Thomas Goodall, or his employees, to cut the pine saplings or trees, to be used in making the crossway over the swamp, then your verdict must be for the defendant.

(6) A duplicate of 4.

The following charges were refused to the plaintiff:

(4) If you are reasonably satisfied from the evidence that Goodall, his servants or agents cut any pine trees under 12 inches in diameter at the ground on any part of the plaintiff's land and outside of any right of way used or made thereon by the defendant, it would be your duty to return a verdict for the plaintiff for $10 for each tree so cut, if any were so cut, unless you are reasonably satisfied from the testimony in the case that plaintiff consented for them to be cut.

(11) If you are reasonably satisfied from the evidence that in July, 1916, Ellard told Watts in the presence of Mrs Ellard not to cut any pine trees under 12 inches in diameter at the ground, and that in 1917 Goodall's employees cut from Ellard's land 121 pine trees less than 12 inches in diameter at the ground outside of any road or right of way made or used by Goodall, you should return a verdict for the plaintiff, not less than $1,210, with the interest thereon from the date of the cutting of such trees, if any such trees were cut.

(12) If you believe the evidence in this case, that the plaintiff did not consent to the cutting of any pine trees under 12 inches in diameter at the ground that may have been cut from said land, if any, in 1917.

R.B. Evins, of Greensboro, J.T. Fuller, of Centerville, and A.W. Stewart, of Marion, for appellant.

Lavender & Thompson, of Centerville, for appellee.

ANDERSON C.J.

This is the second appeal in this cause, and the timber contract was construed and most of the legal questions settled in the first opinion. 203 Ala. 476, 83 So. 569.

Upon the second trial the gum trees or saplings were eliminated, and the plaintiff's claim for a recovery was confined to the pine saplings cut by the defendant under the size covered in the sale contract and not located within the bounds of the right of way as authorized and provided for in said contract. The complaint contained many counts, including the statutory penalty for cutting trees, trover for the conversion of plaintiff's timber or saplings, and trespass quare clausum fregit. There was verdict and judgment for the plaintiff for $2.50, and, being dissatisfied, he prosecuted this appeal.

The verdict, being for only $2.50, negatives a finding by the jury for plaintiff under the counts for the statutory penalty which fixes the amount of recovery at $10 per tree. Therefore the verdict can only be referable to the other counts, and, as the plaintiff recovered a judgment under said other counts, or one of them, not specified in the verdict, he could only complain of errors that may have occurred affecting his right to recover under the statutory counts, or of those which may have affected the amount of his recovery under the counts upon which he did recover.

As we understand the opinion upon former appeal, it does not attempt to affirmatively hold that the defendant was liable for the statutory penalty for cutting the pine saplings not within the right of way and not within the contract if the cutting was done without the consent of the plaintiff. The court merely held that the defendant was liable for cutting said saplings without the consent of the plaintiff. Nor did the court in the former opinion hold that it was not permissible for the defendant to show...