Rogers v. Brooks

• Decision Date: 06 February 1895
• Citation: 105 Ala. 549,17 So. 97
• Parties: ROGERS v. BROOKS.
• Court: Alabama Supreme Court

17 So. 97

105 Ala. 549

ROGERS v. BROOKS.

Supreme Court of Alabama

February 6, 1895

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by Charlotte T. Rogers against John D. Brooks for cutting down and destroying trees without plaintiff's consent. From a judgment for defendant, plaintiff appeals. Reversed.

The facts of this case, pertaining to the only question reviewed on this appeal, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court refused to give the general affirmative charge requested by the plaintiff, and gave at the request of the defendant, the general affirmative charge in his behalf. To each of these rulings the plaintiff separately excepted. Upon judgment being rendered for the defendant, the plaintiff appeals, and assigns as error the giving of the affirmative charge for the defendant, and the refusal to give the general affirmative charge asked by the plaintiff.

Hill Roquemore & Rogers, for appellant.

A. A Wiley, for appellee.

HARALSON J.

This action was brought against the defendant, Brooks, appellee here by the appellant, Rogers, under the provisions of section 3296 of the Code. This is the second appeal in the case. The complaint avers that defendant willfully and knowingly, and without the consent of the plaintiff, cut down and destroyed a large number of trees and saplings on plaintiff's land. It was held in the former appeal, that the complaint was properly filed to recover for the alleged statutory penalty.-Brooks v. Rogers, 99 Ala. 433, 12 So. 61. The statute prescribes among other things, that when any person willfully and knowingly cuts down, destroys or takes away trees or saplings on land not his own, without the consent of the owner of the land, he must pay the owner a prescribed sum for each tree or sapling so cut, destroyed or taken away. The complaint in this case avers, that the damage alleged was done without the consent of the plaintiff. The only question now presented for review is,-upon whom does the burden rest,-upon the plaintiff, to prove she gave no consent, or upon defendant to prove she gave it, for the cutting of the trees? The general rule, as stated in our decisions is, that the burden of proving a disputed fact, rests, in all cases upon the party affirming its existence, and claiming to derive right and benefit from it. A plaintiff is bound to make good his case, so far as it is denied by defendant.-3 Brick. Dig. p. 433, § 388. An exception to this rule is recognized, to the effect, that when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party, as in civil or criminal prosecutions for a penalty for doing an act which the statute does not permit to be done by any persons, except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, and the like.-Farrall v. State, 32 Ala. 557; Atkins v. State, 60 Ala. 45; Freiberg v. State, 94 Ala. 91, 10 So. 703; 1 Greenl. Ev. § 79. In Haney v. Conly, 57 Ala. 180, it is said, "The general rule of law is, that negative averments in pleading need not be proved.-Carpenter v. Devon, 6 Ala. 718; Walker v. Palmer, 24 Ala. 358. But where the negative allegation involves a charge of fraud, or breach of official duty, and many other violations of trust of a kindred character, the onus is on the party making the charge, for the presumption of the law is in favor of innocence." In respect to this general rule referred to above, that negative averments need not be proved, Mr. Greenleaf says: "One class of exceptions [to this rule] will be...