Roll v. Dockery
Decision Date | 23 May 1929 |
Docket Number | 6 Div. 359. |
Citation | 122 So. 630,219 Ala. 374 |
Parties | ROLL v. DOCKERY. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.
Action for trespass and trover by J. H. Roll against R. L. Dockery. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
W. T Hill, of Birmingham, and E. L. Dodson, of Tuscaloosa, for appellant.
John C Pearson and Foster, Rice & Foster, all of Tuscaloosa, for appellee.
The judgment was for defendant.
When the verdict is against plaintiff's right of recovery, a ruling of the court upon the admission of evidence, or giving or refusing instructions relating to the amount of recoverable damages, cannot be the basis of reversal. Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428; Wilson Bros. v. Mobile & O. R. Co., 208 Ala. 581, 94 So. 721; Brothers v. Norris, 209 Ala. 426, 96 So. 328; Orr v. Burleson, 214 Ala. 257, 107 So. 825.
The verdict for defendant under counts of the complaint charging that defendant entered upon plaintiff's land, and cut and removed timber therefrom, and a count charging conversion of sawlogs therefrom, is in effect that defendant did not enter upon plaintiff's land and take therefrom logs, and renders harmless a ruling of the court eliminating a count for the wrongful taking of lumber alleged to have been manufactured from logs so cut and removed. McCary v. Ala. Great South. R. Co., 182 Ala. 597, 614, 62 So. 18.
Appellant insists that the counts to which demurrer was sustained were practically in Code form. Nos. 26 and 28, p. 509, vol. 4, Code of 1923; Gulf Yellow Pine Co. v. Urkuhart, 151 Ala. 452, 44 So. 555; Robins v. Cent. of Ga. Ry., 212 Ala. 596, 103 So. 672. The rules of pleading and for amendments (sections 9467, 9513, Code of 1923), did not authorize a joinder in one count of different causes of action, as the subject-matter before us. Separate counts must be employed. Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826; L. & N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Interstate Lumber Co. v. Duke, 183 Ala. 484, 62 So. 845; Wilson v. Ratcliff, 197 Ala. 548, 73 So. 84; Lisenby v. Capps, 200 Ala. 20, 75 So. 332; Nashville, C. & St. L. R. Co. v. Abramson-Boone Products Co., 199 Ala. 271, 74 So. 350. However, a careful consideration of count 4 shows that it is trover, and avers the elements of damages sustained. If there was error in sustaining demurrer thereto, the matter was submitted to the jury under the trover count, to which demurrer was overruled. The same observation may be made as to count 5 for trespass; and, if there was error in sustaining demurrer thereto, it was without injury, for it was embraced in the trespass count, to which demurrer was overruled.
The witness Roll testified as to the stumpage of his timber that was cut; the kind, number, and dimensions of the many trees cut; and this testimony was given from the cruise of said timber made by witness and another. Said memorandum was made by the witness as he counted and measured the stumps, tops and lengths, and noted the kind of trees while on his land. The witness testified: "I went on this land and counted the stumps and size of the trees cut, measured the size of the stumps and the size of the tops."
The witness was allowed to refresh his recollection as to the stumps from a memorandum. The witness testified: '
Whereupon counsel for plaintiff asked the witness the following question: "Now, is the list that you hold in your hand an accurate list made by you from actual measurement of the stumps and the condition of the trees as you found them?" To which question defendant objected, and the court asked if it was the purpose of counsel to "introduce the list," and plaintiff's counsel replied he was "entitled to introduce it as a memorandum." Defendant replied to this, saying: "He is helping himself out with the memorandum, too." Thereupon the court ruled that "the memorandum may be used for the purpose of refreshing his recollection," but cannot "be introduced in evidence." The plaintiff duly reserved an exception.
This timber cruise should have gone to the jury; it was shown to have been made on the land, and was sought to be shown a correct cruise and memorandum. The evidence shows that the witness was testifying therefrom as a timber cruise or memorandum, and that he had not an independent knowledge and recollection of the detailed facts as stated thereon. It was competent with witness' evidence.
The general rule as to the time for making the memorandum is that it must have been presently committed to writing, contemporaneous and at the time; that is, before a period of time has elapsed as to render it probable that the memory of the witness might become deficient. Atlanta & B. Air Line Ry. v. Brown, 158 Ala. 607, 48 So. 73; 5 Jones on Ev. § 879; 1 Greenl. Ev.§§ 436-438; Maxwell v. Wilkinson, 113 U.S. 656, 5 S.Ct. 691, 28 L.Ed. 1037; Putnam v. United States, 162 U.S. 696, 16 S.Ct. 923, 40 L.Ed. 1118.
In 5 Jones on Evidence, § 879, it is stated, with reference to the case of Pinney v. Andrus, 41 Vt. 631, "in which the witness had made notes of dates and amounts and was permitted over objection to use them for reference," etc.: "
In the class of cases where, after a perusal of the memorandum, the witness has his memory revived, "and his recollection of the specific matter is a present existing one," the witness should speak then without the aid of the writing. Billingslea v. State, 85 Ala. 323, 5 So. 137; Calloway v. Varner, 77 Ala. 541, 54 Am. Rep. 78; Powell v. Henry, 96 Ala. 412, 11 So. 311; Bolling v. Fannin, 97 Ala. 619, 12 So. 59; Danforth v. Tennessee & C. R. Co., 99 Ala. 331, 13 So. 51; 5 Jones on Ev. § 880, p. 323.
The other classes of cases are referred to by Greenl. Ev. § 437, Phillips, Ev. (3d Ed.) 411, and 5 Jones on Ev. §§ 875, 881, note 85, where the memorandum is used to refresh recollection. Where the memorandum furnishes no mental stimulus, and the testimony of a witness, by reference thereto, derives whatever force it possesses from the fact that the written memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection:
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