Rowland v. Gardner

• Decision Date: 14 April 1949
• Docket Number: 32266.
• Citation: 53 S.E.2d 198,79 Ga.App. 153
• Parties: ROWLAND v. GARDNER.
• Court: Georgia Court of Appeals

53 S.E.2d 198

79 Ga.App. 153

ROWLAND v. GARDNER.

No. 32266.

Court of Appeals of Georgia, Division Nos. 1, 2.

April 14, 1949

Rehearing Denied April 22, 1949.

Syllabus by the Court.

1. The verdict is supported by the evidence on both counts. The jury was authorized to find that the defendant was a wilful trespasser. The verdict is not void for uncertainty and ambiguity because it is in a lump sum based on the two counts.

2. The cause of action alleged in count 1 of the petition, for damages for the wilful cutting and removing of timber from the lands of the plaintiff, was an action in trover; and the plaintiff could recover the highest amount proved between the time of the conversion and the trial.

(a) The action in count 1 being in trover and for damages amounted to an election for such a recovery.

(b) The excerpts from the charge complained of in special grounds 2 and 3 of the amended motion do not show error.

3. The court did not err in overruling the motion for a new trial.

FELTON J., and SUTTON, C. J., dissenting.

Mrs Irene Harris Gardner sued L. O. Rowland for damages in the sum of $5000, her petition containing two counts.

Count 1 alleged in substance that the plaintiff was the owner of 68 acres of land, more or less, in Terrell County; that during the year 1946, the defendant wilfully entered upon plaintiff's land and cut and removed therefrom and converted to his own use certain described timber, of the value at the time of the bringing of the suit of $4000.

Count 2 alleged in substance that the defendant entered upon the lands of the plaintiff without authority and committed a wilful and intentional trespass thereon with logging trucks, cranes, loading devices, snaking machines, and with other things unknown to plaintiff; that the use of these instrumentalities resulted in the destruction of young timber and trees and damage to growing crops on the plaintiff's land in the sum of $1000.

The defendant filed his answer to both counts of the petition in which he denied the material allegations thereof and alleged that he was cutting timber on the land adjoining that of the plaintiff, and that if he trespassed upon any of the lands of the plaintiff he was innocent and in good faith because he did not know that he was on the lands of the plaintiff.

Upon the trial of the case the plaintiff introduced evidence which, constructed most favorably in support of the verdict, authorized the jury to find that the defendant cut from the land of the plaintiff sufficient timber to make, when manufactured into lumber, 38,740 board feet.

A number of witnesses testified as to the value of the lumber. H. L. McPherson, a witness for the plaintiff and the man who sold the timber off his property to the defendant, testified that in the year 1946 he bought lumber at the market price, valued at from $90 to $250 per thousand feet. W. J. McMath, a witness for the plaintiff, testified that he had been buying lumber during the past year or so and that the highest he had paid for pine lumber during that time on the local market at Dawson was $180 per thousand feet. This witness also testified that lumber was higher at the time of the trial (July 7, 1948) than in 1946. Wade Hass, a witness for the plaintiff, testified in part as follows: 'I am familiar with prices of lumber in Dawson during the last two years. I would say the average price of pine lumber is from $120 to $125. I bought some and paid $185 per thousand. It is high if you have to buy it. Poplar is a good price too. Yes sir, all lumber is high right now.' None of these witnesses undertook to testify as to the value of the lumber manufactured from the timber taken by the defendant from the lands of the plaintiff at the time of the conversion of the timber, or at the time of the bringing of the suit, or at the time of the trial. However, the plaintiff testified in substance that the market value of the lumber manufactured from her trees was $100 per thousand feet, and there being no evidence to the contrary the jury was authorized to find this to be the value thereof.

The defendant, testifying in his own behalf, stated in substance that he cut 28,274 feet of timber in that particular place where there was a controversy about the difference in the land lines; that he cut this in good faith believing that he was on the land of McPherson from whom he had bought the timber located on his land; that McPherson had pointed out the lines to him as best he could; that his logging man sent word to him that they were over the line on the property of someone else and that he immediately went out there in his jeep and stopped the cutting. He testified that the value of the timber which was cut from the lands of the plaintiff in 1946 was from $12 to $15 per thousand feet on the stump.

In support of count 2 for damages to the young timber left on the property, Tom Wilson, a witness for the plaintiff, testified substantially that he has been living in the vicinity of the property in question for the past 9 years; that he farms a part of the property of the plaintiff; that he is familiar with the line between the property of the plaintiff and the McPherson property, and that in his opinion the defendant did some damage tearing down little trees on the property of the plaintiff. Wade Hass, a witness for the plaintiff, testified in substance that he observed the condition of the woodland after the defendant had cut timber from the property of the plaintiff in question, with reference to the young trees; that before the cutting the growth was thick, and that since the cutting the plaintiff 'won't have much timber left for several years to come.' The plaintiff testified substantially that she examined the property after the cutting and observed that they had done a little damage to the young timber; that in getting out they had run over the young trees; that she asked $1000 as damages for this and that she did not think this sum unreasonable. She had other witnesses also testified that in hauling logs away from the premises the defendant crossed one of the plaintiff's fields in which Tom Wilson had a crop of peanuts growing and that one of the logs was left in that field.

The jury returned a verdict for the plaintiff for $3000 and judgment based thereon was accordingly entered. The defendant filed a motion for a new trial on the general grounds which was amended by adding five special grounds. The trial judge overruled the motion for a new trial as amended and this judgment is assigned as error.

H. A. Wilkinson, of Dawson, for plaintiff in error.

R. R. Jones, of Dawson, for defendant in error.

PARKER Judge.

1. Special ground 1 of the amended motion for a new trial contends that the verdict is totally null and void for uncertainty and ambiguity and is contrary to law because it does not cover the issues made by the pleadings and the evidence; that since the case was brought in two counts, first for recovery for timber cut from the land of the plaintiff, based on the manufactured value of the lumber produced therefrom, and second, for damages based on a trespass to the realty caused by damaging the young trees remaining on the property and injury to growing crops, the verdict in a lump sum, not stating the amount found for the lumber produced form the timber taken from the land of the plaintiff, and not stating the amount found for damages based on a trespass to the realty caused by damaging the young trees and injury to the growing crops, is void for uncertainty and ambiguity. The defendant also contends in this ground of the amended motion that the charge of the court instructing the jury in substance that if they found in favor of the plaintiff on both counts to return their verdict in one amount for the entire recovery, is erroneous and misleading.

Special ground 4 of the amended motion contends that the verdict is contrary to law and the evidence because the evidence does not warrant a finding by the jury that there was a willful and intentional trespass by the defendant.

Special ground 5 contends that the verdict is contrary to the law and the evidence and is without evidence to support it.

Each of the foregoing special grounds are here considered in connection with the general grounds of the motion for a new trial.

(a) Both counts of the petition were supported by some evidence and the verdict of the jury in the sum of $3000 is within its range. As to count 1 the jury was authorized to find that the defendant cut from the land of the plaintiff a sufficient amount of timber to make, when manufactured into lumber 38,740 board feet, and that the highest proven value thereof between the time of the conversion and the time of the trial was $100 per thousand. The burden of showing good faith in committing the conversion was upon the defendant, as well as the amount of deduction claimed by reason of expenditures of money and labor in manufacturing the timber into lumber. Taylor v. Hammack, 61 Ga.App. 640(2), 7 S.E.2d 200. The jury was authorized to find that the line between the property on which the defendant had bought the timber and the property of the plaintiff was pointed out to the defendant; that this line was marked through the woods by blazed trees; and that the defendant employed a man to log this timber. The defendant offered no testimony that he pointed out this line to his logger or otherwise cautioned him not to cross over it. Whether or not the defendant carried the burden of showing his trespass to be innocent or unintentional was a proper question for the jury, and was by the jury resolved against the contentions of the defendant. Ingram v. Smith, 62 Ga.App. 335, 7 S.E.2d 922.

As to count 2, the testimony of witnesses for the plaintiff as set forth...