Gowan v. Wisconsin-Alabama Lumber Co.

• Decision Date: 17 June 1926
• Docket Number: 5 Div. 944
• Citation: 110 So. 31,215 Ala. 231
• Parties: GOWAN v. WISCONSIN-ALABAMA LUMBER CO.
• Court: Alabama Supreme Court

110 So. 31

215 Ala. 231

GOWAN v. WISCONSIN-ALABAMA LUMBER CO.

5 Div. 944

Supreme Court of Alabama

June 17, 1926

Rehearing Denied Nov. 11, 1926

Appeal from Circuit Court, Coosa County; E.S. Lyman, Judge.

Action by the Wisconsin-Alabama Lumber Company against J.E. Gowan. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

V.J Heard and J.B. Atkinson, both of Clanton, for appellant.

H.A Teel. of Rockford, and Coleman, Coleman, Spain & Stewart, of Birmingham, for appellee.

SAYRE J.

Action by appellee against appellant in counts charging trespass to realty, conversion of pine and oak timber, and, under section 10371 of the present Code, for cutting trees willfully and knowingly without the consent of the owner.

Stress is laid upon appellant's contention that plaintiff failed to offer evidence of its ownership of the trees, and, hence that defendant (appellant) was entitled to the general affirmative charge duly requested. At numerous places in the evidence and by several witnesses the trees in controversy were spoken of as the trees of plaintiff. However, there was absence, so far as these witnesses were concerned, of any direct affirmation that the trees were the property of plaintiff. But it appeared in evidence that, pending the dispute between the parties, defendant had written a communication to plaintiff in which he said:

"With respect to our conversation to-day regarding trespass by my loggers, *** according to my check on this, there has been a total of about 68,200 feet cut over on your line. I consider the satisfactory settlement of this trespass would be a payment by me to you of $350."

This was admitted over defendant's objection, and, if properly admitted, constituted an admission of plaintiff's ownership.

The communication to which we have referred was in part incompetent, since it contained an offer of compromise; but, in other part, viz., that part in which defendant said, in effect, that he had checked the trees cut and found a total of about 68,200 feet, was a statement of relevant fact, admissible notwithstanding its connection with the offer of compromise, because it must be supposed to have been made because of defendant's belief in its truth. Matthews v. Farrell, 140 Ala. 298, 37 So. 335; Gibbs v. Wright, 14 Ala. 467; 22 C.J. 314, where many cases are cited. In order to bring about the exclusion of the incompetent part, defendant's objection should have separated the incompetent from the competent. As it was, the court committed no error in overruling defendant's objection. Chambers v. Ringstaff, 69 Ala. 146; 22 C.J. 316.

Charge B, given for plaintiff, was nothing more than a statement of the law as found in section 10371 of the Code.

Assignments of error 22 and 25, based on the court's refusal of the general affirmative charge as to counts 2 and 5, counts in conversion, cannot be sustained. The main insistence in this connection is that there was no evidence of actual possession by plaintiff nor evidence of title to establish constructive possession. As to this, we refer to what has been said above. As for the rest, the evidence went to show a conversion of plaintiff's trees. True, evidence for defendant tended to show that he had cut and carried away only trees that had been boxed for turpentine and that such trees had been boxed prior to plaintiff's purchase of the land on which they stood; but the evidence as to this was in conflict, that for plaintiff tending to show, not only the cutting of other trees on its land, but that some of the trees cut had been boxed by defendant after its purchase and that the boxing as well as the cutting were done in the course of trespasses on plaintiff's land. Like considerations serve to show that several other assignments of error urged in appellant's brief must be held for naught.

The trees cut from plaintiff's land had been taken in part to the railroad and in other part to the bank of Weogufka creek, both only a short distance away from the place of cutting. Plaintiff was allowed, over defendant's objection, to introduce testimony as to the value of the timber at the water's edge and by the side of the railroad. The most specific objection to this testimony was that "it was not the proper measure of damages." It may be seriously doubted that the quoted language was explicit enough to raise the point to which the argument is now addressed; which is that the evidence should have been limited to the value of the trees at the place where they were cut. In trover against an inadvertent wrongdoer for the conversion of logs or trees as chattels, the rule is that the measure of recovery is the value immediately after severance. White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159. But this means market value, and there was no error in admitting evidence of value at the water's edge and by side of the railroad where, it may be assumed, these logs or this timber came for the first time in contact with the market--with conditions conferring market value. Their value had been increased by the cost or value to transport to these points, but that circumstances did not render evidence of value at such points irrelevant or incompetent. Zimmerman Mfg. Co. v. Dunn, 151 Ala. 440, 44 So. 533; Berry v. Nall, 54 Ala. 451.

There was no error in giving charge 2 requested by plaintiff. The charge correctly stated the law. Mattingly v Houston, 167 Ala. 167, 52 So. 78; Merritt v. Williams, 214 Ala. 427, 108 So. 257. There was evidence...