Hercules Inc. v. Jones
| Decision Date | 18 September 1969 |
| Docket Number | 3 Div. 346 |
| Citation | 284 Ala. 692,228 So.2d 9 |
| Parties | HERCULES INCORPORATED v. H. A. JONES, Jr. et al. |
| Court | Alabama Supreme Court |
Edwin C. Page, Jr., Evergreen, and Jas. Simrall, Jr., Hattiesburg, Miss., for appellant.
J. B. Nix, Jr., Evergreen, and Windell C. Owens, Monroeville, for appellees.
This is an appeal by the defendant, Hercules Incorporated, from a judgment rendered in the Circuit Court of Conecuh County in favor of plaintiffs in the sum of $6,624. A jury verdict for $10,624 was reduced by the trial court on motion, a remittitur of $4,000 having been ordered and accepted by the plaintiffs. The subject matter of the litigation involved an alleged trespass to land, the cutting down of trees, and the removal of stumps. All of this was alleged to have occurred in 1961. The complaint was filed in court against Hercules Powder Company and three individuals on March 10, 1962. It appears that the case was permitted to lie dormant thereafter for over four years until service was had on the corporate defendant by serving the designated statutory agent on August 29, 1966.
A plea in abatement was then filed. Demurrers were filed by plaintiffs to this plea. Thereafter on September 15, 1967, plaintiffs filed an amendment striking the three original individual defendants and changing the name of the defendant Hercules Powder Company to read Hercules Incorporated, a corporation. The same day parties filed a plea in short by consent. Also on the 15th day of September, 1967, a judgment order was signed and filed indicating a ruling by the court sustaining the demurrers to the plea in abatement. Thereafter the jury trial was commenced and completed with the verdict against the defendant for $10,624, but later reduced as indicated above.
The original complaint contained five counts, but Count Two was stricken by plaintiffs. Count One was a statutory count alleging trespass to land and destruction of timber. Count Three was based on negligence; Count Four on conversion; and Count Five claimed damages, charging a willful destruction of trees, based on Title 47, § 272, Code 1940, and seeks to recover statutory penalty of $20 per tree destroyed.
There are twenty-two assignments of error, but appellant argues only ten, and these we will now consider.
Appellant contends there was error in failing to grant motion to exclude evidence of plaintiffs' witness A. E. Beasley given on direct examination as follows:
There was no objection to any of these questions. The motion to exclude was properly overruled. The marking or lettering was relevant evidence to show ownership. Appellant cites Dortch Baking Co. v. Schoel, 239 Ala. 266, 194 So. 807. There the case was reversed because the finding by the jury 'as to the fact of agency,' as against the contention 'that indicating that Mattison was an independent dealer and contractor' was contrary to the great weight of the evidence. There was no ruling in this case on the admissibility of the evidence that the name 'Dortch' appeared on the truck. See also: Sears, Roebuck & Co. v. Hamm, 38 Ala.App. 258, 81 So.2d 915; Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345.
On direct examination, plaintiff H. A. Jones was asked: 'You testified * * * that some man whose name was Karl or Kohn came to see you on Saturday morning after you got home and found out your twenty acres had been cut and I am going to ask you now--how did he identify himself there?' There was objection, which was overruled, and an exception reserved. The witness answered: '* * * as W. H. Karl as wood supervisor of Hercules Powder.' There was a motion to exclude and this was overruled and an exception reserved. Appellant contends that this violates the rule that the 'declaration or conduct of one professing to act as an agent of another cannot be shown without independent proof of his authority.' Appellant relies on American National Insurance Co. v. Brooks, 210 Ala. 317, 97 So. 790. There the ruling was to uphold the contention that two or more unknown individuals claiming to be superintendents of an insurance company could not be quoted by plaintiff, 'They said they came to pay me off, * * *.' The opinion upheld the rule that: '* * * the declarations of conduct of one professing to act as the agent of another cannot be received as evidence against the principal without independent proof of his authority.'
We note the question here put to the witness dealt only with his 'identifying himself' rather than with the merits of the controversy. These questions did come later and were answered without objection.
Appellees cite Wilson & Co. v. Clark, 259 Ala. 619, 67 So.2d 898. There one Rudder told plaintiff, 'I am working for the Wilson & Company plant and whatever I say goes.' The question to be decided was: Did Rudder have the authority to make a cattle feeding contract? The court observed:
'The general rule of evidence is that agency cannot be proven by the declarations of the agent, though his declarations as to other matters on certain occasions may be admissible to prove other facts Corona Coal & Iron Co. v. Callahan, 202 Ala. 649, 81 So. 591.
(Emphasis supplied)--259 Ala. 622, 67 So.2d 901.
We hold that the ruling of the court was without error.
Later on, the same question was put to the witness, who answered without objection that 'he identified himself as the field representative for Hercules Powder.' This was repetition and we again assert, for reasons above indicated, the ruling was without error.
This assignment relates to the ruling of the court on direct examination of plaintiff H. A. Jones, as follows:
The question was repeated and the witness answered:
'I asked him if he didn't know whose property that he was on and he said, 'we have an aerial map', and I said, 'Well, didn't you know--couldn't you tell when you got to this fence?', and he said, 'we went over the fence', and I said, 'I know you did'.'
Several questions and answers followed with no objections until there was a motion to exclude, raised in Assignment 17 (later).
It would appear that the objection in no way indicated to the court the basis of the objection. The answer did not involve the corporate defendant certainly at this time. We feel the answers to the other questions, to which no objection was interposed, brought out in detail other evidence of similar activity. We hold there was no error in the court's ruling.
This assignment is related to Assignment 21 in that they both allege error in admitting or failing to exclude testimony dealing with statements by an alleged agent as proof of his authority before there was independent proof of the existence of a relationship. We first note there was no objection to the question. For the reasons given in our ruling on Assignment of Error 21, we hold there was no error in the court's ruling as assigned herein.
E. L. Gardner, a witness for the defendant, testified that he had visited the land of plaintiffs on August 31, 1967 (just before the trial). On cross examination, he was asked if he had permission to go on the land. The witness was allowed to answer over objection of appellant and it here assigned this ruling as error. The witness answered that he did not have permission. This was fully within the realm of cross examination. Plaintiffs had the right to develop the circumstances of this inspection to include when, how and whether he had permission from the owners. There was no error in this ruling.
Defendant requested the following written charge: This charge was refused by the trial court and we hold without error. Although appellant contends it was requested 'under Count Five of the complaint,' there is nothing in the charge to indicate any limitation. Since it completely ignores issues presented in the other counts, it was properly refused.--Self v. Baker, 266 Ala. 572, 98 So.2d 10; Johnson v. Coker, 281 Ala. 14, 198 So.2d 299. We also call attention to the extended oral charge of the court on Count Five with no exceptions by appellant.
This assignment is based on the action of the court in refusing to give the defendant a directed verdict at the time plaintiffs rested. The record shows, on page 62, as follows:
'THE COURT: Let the record show that at the conclusion of the Plaintiff's case, the Defendant moved for the general affirmative charge on the grounds that the case was insufficient as a matter of law to be submitted to the jury on the question or not of agency and Respondeat superior and the Court having heard arguments for and against said motion for the general affirmative charge and the formal consideration thereof, declined to give the general affirmative charge in favor of the Defendant.'
There was evidence that the trucks which were seen on the property at the time it is...
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