Evans Bros. Const. Co. v. Steiner Bros.

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 714.
• Citation: 208 Ala. 306,94 So. 361
• Parties: EVANS BROS. CONST. CO. v. STEINER BROS.
• Court: Alabama Supreme Court

94 So. 361

208 Ala. 306

EVANS BROS. CONST. CO. v. STEINER BROS.

6 Div. 714.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Steiner Bros. against the Evans Bros. Construction Company for the cutting and removal of trees. From a judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

Coleman & Coleman & Spain, of Birmingham, for appellant.

Leader & Ullman and David R. Solomon, all of Birmingham, for appellees.

SOMERVILLE J.

A complaint which claims the statutory penalty for willfully and knowingly cutting trees on the land of another without the owner's consent, and which charges that the acts were done by the agents or servants of the defendant, is not sufficient. Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 41 L. R. A. 650, 67 Am. St. Rep. 32; Rudolph v Holmes, 201 Ala. 461, 78 So. 839.

Count 1 of the complaint is not subject to that objection, however since it charges that the defendant corporation did the cutting as alleged, "by and through its servants," etc. This sufficiently charges an act done by direct corporate authority. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477; Ex parte L. & N. R. R. Co., 203 Ala 328, 83 So. 52.

It is not necessary in pleading to allege that a corporation acted by its agents or servants. "Indeed, it is commonly held that the acts constituting the cause of action should be alleged as the acts of the corporation, and that it is not necessary to aver that they were done by and through the authorized agents of the corporation." 14a Corp. Jur. 845, § 2970, citing many authorities. Counts 2 and 3 were not subject to demurrer on this account.

Where a single act of trespass is alleged, the time when it occurred must be precisely alleged. Snedecor v. Pope, 143 Ala. 275, 39 So. 318. But "divers trespasses may be alleged to have been committed from day to day during a certain period. ***. In general, where divers trespasses are alleged as occurring within a certain period, any number within the period may be shown." 33 Cyc. 1083; Ala. Midland R. R. Co. v. Martin, 100 Ala. 511, 14 So. 401. We think the allegations of counts 6 and 7 bring them fairly within this rule. Moreover, where the exact time of the trespass is alleged to be unknown to the plaintiff, as is here alleged, it is undoubtedly sufficient to state the period within which it occurred. The demurrer on this ground was properly overruled.

The memorandum used by the witness W. A. Sellers, showing the number of trees cut on plaintiff's land and the size of the stumps, was shown to have been made at the very time the stumps were counted and measured, and it appeared that he knew it was correct at the time he made it, but had no independent recollection of the figures therein set forth, at the time he was testifying. This was a sufficient predicate for the introduction of the memorandum in evidence. It was no objection to its admissibility that it was made long after the trees were cut, for it was a memorandum of the stumps counted, and not of the cutting of the trees. Taken in connection with the witness' testimony, it was perfectly intelligible.

We agree with counsel for defendant in the view that the evidence shows without material conflict that, in cutting the timber on plaintiff's land, Grant (in 1918) and Ward (in 1920) were operating as independent...