Ford v. Sellers
| Decision Date | 19 June 1952 |
| Docket Number | 7 Div. 145 |
| Citation | 257 Ala. 404,59 So.2d 799 |
| Parties | FORD v. SELLERS et al. |
| Court | Alabama Supreme Court |
Young & Young, Anniston, for appellant.
Merrill, Merrill & Vardaman and Chas. Thomason, Anniston, for appellees.
This is an appeal from the judgment of the circuit court granting defendants' motion for a new trial. The jury found the issues in favor of the plaintiff, appellant here, under counts 1 and 2 of the complaint and assessed his damages at $550. Judgment was entered thereon.
Court 1 is for trespass to realty, Form 28, § 223, Title 7, Code of 1940, it being alleged in the count that the damages were 'for a trespass by the defendants on the following tract of land towit * * * belonging to the plaintiff and for cutting the timber on said land on or about during the months towit April and May 1949.' Count 2 is for the conversion 'during the months of towit April and May 1949 of 55 pine trees, the property of the plaintiff.'
The defendants filed their motion for a new trial assigning 23 grounds as the basis therefor. The court granted the motion but did not state the ground or grounds on which it was granted.
If the court's action in granting the motion was justified on any ground set forth in the motion, the judgment setting aside the verdict and judgment should be affirmed. American Mut. Liability Ins. Co. v. Louisville & N. R. Co., 250 Ala. 354, 34 So.2d 474; Birmingham Electric Co. v. Toner, 251 Ala. 414, 419, 37 So.2d 584.
The court charged the jury that the measure of the plaintiff's damages under the first count of the complaint is the difference in the market value of the land trespassed on immediately before the commission of the injuries and the market value of the land immediately thereafter. The plaintiff introduced testimony tending to show the market value of the timber which had been cut by the defendants. There was no proof, however, showing the market value of the land immediately prior to and immediately following the alleged cutting of the timber. In Riggin v. Hogg, 203 Ala. 243, 82 So. 341, 342, it was pointed out that in a count for damages for trespass quare clausum fregit, the damages recoverable are for injury to the lands and not for the value of the timber. It was further pointed out that 'the mere fact that it is alleged in the complaint that timber was cut, injured, and removed from the land does not constitute a claim for damages as for the value of the timber', that being 'a mere description of the nature and character of the trespass to the land.' The rule here stated is the rule obtaining in this jurisdiction. Lee v. Thornton, 252 Ala. 367, 41 So.2d 297; Loper v. Ganguet, 250 Ala. 584, 35 So.2d 341; Howell v. City of Dothan, 234 Ala. 158, 174 So. 624; Granade v. United States Lumber and Cotton Co., 224 Ala. 185, 139 So. 409; Davis v. Miller-Brent Lumber...
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Dollar v. McKinney
...damages. Lee v. Gidley, 252 Ala. 156, 40 So.2d 80; Alabama Great Southern R. Co. v. Russell, 254 Ala. 701, 48 So.2d 249; Ford v. Sellers, 257 Ala. 404, 59 So.2d 799. On direct examination, E. Leon McKinney, the husband of plaintiff, who was called as a witness on her behalf, testified with ......
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Mullinax v. Hufham
...25 So.2d 852; Cox v. Martin, 250 Ala. 401, 34 So.2d 463; Martin v. Birmingham Southern R. Co., 250 Ala. 583, 35 So.2d 339; Ford v. Sellers, 257 Ala. 404, 59 So.2d 799; Morgan County v. Hart, 260 Ala. 418, 71 So.2d 278; King v. Skinner, 261 Ala. 9, 72 So.2d 730; Commercial Standard Ins. Co. ......
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McMurphy v. Pipkin
...should find that it was justified upon any of the grounds assigned, the action of the trial court must be here affirmed. Ford v. Sellers, 257 Ala. 404, 405, 59 So.2d 799; Birmingham Electric Co. v. Toner, 251 Ala. 414, 419, 37 So.2d 584; American Mut. Liability Ins. Co. v. Louisville and N.......
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