McCall v. Busey

• Decision Date: 18 March 1943
• Docket Number: 1 Div. 191.
• Citation: 12 So.2d 401,244 Ala. 162
• Parties: McCALL et al. v. BUSEY.
• Court: Alabama Supreme Court

12 So.2d 401

244 Ala. 162

McCALL et al. v. BUSEY.

1 Div. 191.

Supreme Court of Alabama

March 18, 1943

Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.

The following charges were given at plaintiff's request:

"3. The Court charges the jury that the opinions of witnesses as to the market value of property should be weighed by the jury in the light of other evidence, and the opportunity of the witness to know such value, and the reasonableness or unreasonableness of their estimate of such value. The jury are not bound to take any man's opinion of such value but may act on their own judgment and good sense in arriving at a just value, in the light of the whole evidence."

"3-A. I charge you, gentlemen of the jury, that in the event you find from the evidence that the brothers of plaintiff, or any of them, were in the habit of attending to the business of plaintiff, that this fact was known by the defendants at the times they were dealing with her in relation to the matters involved in this suit, and that any one or more of said brothers did represent her in these matters, then she would be bound by their representations to defendants respecting the location of lines between the property of plaintiff and these defendants."

"5. The court charges the jury that the measure of plaintiff's damages in this case under the 1st 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."

J D. Ratcliffe and A. C. Lee, both of Monroeville, for appellants.

C L. Hybart, of Monroeville, for appellee.

BROWN Justice.

This is an action of trespass by the appellee against appellant to recover damages to plaintiff's land resulting from the alleged acts of the defendants, in the operation of their business in cutting timber on adjacent lands, in going on plaintiff's lands with their trucks and other vehicles making roads, and ruts, in consequence of which erosion to the soil was caused, and young growing timber was broken down and destroyed, and valuable timber cut and taken therefrom.

The defendant pleaded the general issue, and special pleas setting up a license by the plaintiff, and offered evidence tending to show license or consent by the plaintiff to said operators on her premises. This evidence was controverted by evidence offered by the plaintiff.

The assignments of error argued relate to the giving of special written charges requested by the plaintiff, the refusal of special charges requested by the defendants and the overruling of the defendants' motion for new trial.

Charge 3 given at the request of the plaintiff is in the exact language of charge 10 given for the defendant in Meighan v. Birmingham Terminal Company, 165 Ala. 591, 51 So 775, 778, as to which it was observed: "We discover no tenable objection to charge 10." And we now observe, the worst that can be said in criticism of it is its statement that, "The jury...