Johnson v. Woodward Lumber Co

• Decision Date: 22 November 1947
• Docket Number: No. 31667.,31667.
• Citation: 45 S.E.2d 294
• Parties: JOHNSON. v. WOODWARD LUMBER CO.
• Court: Georgia Court of Appeals

45 S.E.2d 294

JOHNSON.

v.WOODWARD LUMBER CO.

No. 31667.

Court of Appeals of Georgia,

Division No. 2.

Nov. 22, 1947.

Syllabus by the Court.

1. "Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge."

2. "Where a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient."

3. Where the location of one boundary line is in dispute, it is not error to admit testimony of a coterminous landowner relative to the location of another boundary line of the same tract of land where it serves to elucidate or throw light upon the issue being tried.

Error from Superior Court, Richmond County; G. C. Anderson, Judge.

Action in trespass by the Woodward Lumber Company against W. C. Johnson to recover damages for the cutting and removing of standing timber from realty owned by plaintiff. To review a judgment for plaintiff, defendant brought error to the Supreme Court. The Supreme Court, 42 S.E.2d 639, transferred the appeal to the Court of Appeals.

Judgment affirmed.

The Woodward Lumber Company brought an action in trespass against Wm. Clifford Johnson to recover damages occasioned by the cutting and removing of standing timber from a tract of land owned by the plaintiff.

In his answer the defendant denied the trespass and alleged that he owned adjoining land and had cut timber from his land only.

The jury returned a verdict in favor of the plaintiff. The defendant filed a motion for new trial based on the general and one special ground. This motion was overruled, and the defendant excepted.

Pierce Bros., of Augusta, for plaintiff in error.

Wm. P. Congdon and J. Walter Harper, both of Augusta, for defendant in error.

MacINTYRE, Presiding Judge.

1. The defendant contends that none of the witnesses for the plaintiff testified from their own knowledge that the defendant cut timber located on the land of the plaintiff.

I. H. Zimmerman, witness of the plaintiff, testified: "* * * I was just leading up to how I got in touch with Mr. Johnson. I came back to Augusta and I called up the party that Mr. Johnson was selling lumber to and told him to get hold of Mr. Johnson; that we wanted to see him right away; that it looked like he had cut some of our timber. Well, I think it took me, I would say, about three to four weeks to get hold of him, because I called the company, I think, on either three or four occasions, and finally Mr. Johnson came to our office, and I told him it was quite evident he had cut over the line and cut our timber, and, of course, he said he hadn't, so I asked him to meet me out there. * * * From the lines as shown on this particular plat in front of me, which is a recorded plat, from knowing where those lines are on the ground, I would say the timber has been cut from the Woodward Lumber Company property. We wouldn't have this suit if he hadn't cut our timber. * * *"

The testimony of Zimmerman does not affirmatively disclose that he was testifying from hearsay, and this Court cannot say, as a matter of law, that he was not testifying from personal knowledge. "Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge." Shaw v. Jones, Newton & Co., 133 Ga. 446, 66 S.E. 240; Reaves v. Columbus Electric & Power Co., 32 Ga.App. 140, 150, 122 S.E. 824, "Where a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being...