Russell v. Pryor
| Decision Date | 17 July 1978 |
| Docket Number | No. 2,No. 77-282,77-282,2 |
| Citation | 568 S.W.2d 918,264 Ark. 45 |
| Parties | George RUSSELL, Appellant, v. Susie PRYOR, Bill Pryor, David Pryor, Elinor Ozment, and Cornelia Lindsey, Appellees |
| Court | Arkansas Supreme Court |
Anderson & Crumpler, Magnolia, for appellant.
Julian D. Streett, Camden, for appellees.
Appellant Russell was the owner of lands lying to the west and to the south of property owned by appellees. Thus, there were two common boundary lines. In 1971 and 1972, appellant engaged James Magsby, Morris Thompson and Tiny Ford to cut timber on his land. Appellees filed this action against appellant, International Paper Company, Southern Pulpwood Company, Arkansas Pulpwood Company, Morris Thompson and James Magsby in July, 1974. They alleged that Thompson, as employee and agent of Southern Pulpwood Company and International Paper Company and Magsby, as employee and agent of Arkansas Pulpwood Company and International Paper Company, had unlawfully cut and removed timber from the lands of appellees (hereafter called the Pryor land) at the direction and request of appellant Russell. It was alleged that the defendants wilfully trespassed and cut and removed the timber in violation of Ark.Stat.Ann. § 50-105 (Repl.1971), and that appellees were entitled to treble the value of the timber cut. Appellees also alleged that they were entitled to double the amount of the timber cut and that the Pryor land had been permanently damaged to the extent of $50 per acre on 46 acres from which the timber was cut. The prayer sought recovery of treble damages under Ark.Stat.Ann. § 50-105 or, alternatively, double the value of the timber cut, or in the alternative, for the value of the timber cut as damages for its conversion and $2,300 for permanent damage to the land. Tiny Ford was added as a party defendant in June, 1975. Trial was had on February 5, 1976.
After the evidence had been presented and the jury had been instructed, the jury returned its verdict by answering interrogatories submitted to it. Its answers, so far as they are material, follow:
If your answer to Interrogatory No. 1 is "Yes" then answer this question:
Do you find, from a preponderance of the evidence, that the cutting and removal of the Pryor timber by Morris Thompson was done at the direction and advice of George Russell?
If your answer to Interrogatory No. 2 is "Yes" then answer this question:
Do you find, from a preponderance of the evidence, that George Russell acted with the intention of depriving the Pryors of the value of the timber cut and removed from their land?
Do you find, from a preponderance of the evidence, that Tiny Ford cut and removed timber from the Pryor land without the approval or knowledge of the Pryors?
If your answer to Interrogatory No. 4 is "Yes" then answer this question:
Do you find, from a preponderance of the evidence, that the cutting and removal of the Pryor timber by Tiny Ford was done at the direction and advice of George Russell?
(Interrogatory No. 6 was to be answered only if No. 5 was answered "yes.")
If you have answered either Interrogatory No. 1 or Interrogatory No. 4 "Yes" then answer this question:
What do you find, from a preponderance of the evidence, to be the value of the timber as saw logs at the time it was cut and removed from the Pryor land:
$4,400.00
In spite of the jury verdict, the trial court entered judgment for $4,400 against George Russell, Morris Thompson and Tiny Ford, jointly and severally, and entered judgment against Russell in the additional sum of $8,800.
Russell filed a motion for new trial on the ground that the answers to the interrogatories submitted to the jury were inconsistent. The trial judge refused to grant a new trial, but entered its judgment in spite of the jury verdict for the reasons set out in its judgment, i. e.,:
Appellant admits that the court may have been correct in stating that Morris Thompson showed Tiny Ford where to cut, but says that the jury could and did find that the Pryor timber cut by Ford was not done at the direction or advice of appellant Russell. He refers to his own testimony in which he had stated that he had shown his property lines to Morris Thompson, James Thompson and Tiny Ford. He had testified that he showed them all the boundary lines between him and the Pryors "not just once" but several times. He said that he never took them across the Pryor land and claimed it as his land, that he did not tell them to cut across the Pryor land over to Norwood's west line (which was the Pryor east line), and that he had showed them his line and told them to stop there. James Magsby, a man employed by appellant to cut timber at approximately the same time as Thompson and Ford, testified that appellant had shown him the true boundaries and told him not to cut across that line.
Appellant says that this testimony was clearly a sufficient basis for the jury's finding that Ford did not cut timber from the Pryor land at his direction and advice. Appellant claims that, in effect, the court's action amounted to a judgment notwithstanding the verdict and points out that when such a judgment is rendered, the testimony must be undisputed so that the court might declare as a matter of law, that the party in whose favor the judgment was entered was entitled to it, citing Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W.2d 192, in which Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S.W. 141 was quoted. Appellant also refers us to Williams v. Curtis, 256 Ark. 237, 506 S.W.2d 563, in which we said that the governing rule on judgments n. o. v. and directed verdicts was the same. It was there pointed out that, in testing whether there is substantial evidence, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom a verdict would be directed and if there is any conflict in the evidence or, where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.
It does seem that there was evidence from which the jury could find that Ford did not cut the timber on the Pryor land on the advice or direction of Russell if Russell showed Thompson and Ford the true lines, or if he showed Thompson the true lines and Thompson showed Ford the wrong boundary. Appellees say that it is clear from the evidence that a jury question was presented as to whether appellant instructed either Thompson or Ford to cut on the property owned by the Pryors and that the jury could easily have found that both Thompson and Ford cut timber from the Pryor property but that only Thompson did so at the direction and advice of George Russell. It also appears certain, as appellees say, that it is clear that the jury found that Russell had shown Thompson incorrect lines which included the Pryor land from which he and Ford had cut timber. Ford testified that Russell told him that he had shown the location of the lines to Morris Thompson and his brother.
Appellees argue that the fact that the jury found that Thompson acted at the direction and advice of Russell, and that Ford did not, is really of no consequence because the jury found both Thompson and Ford cut and removed timber from the Pryor land without the approval or knowledge of the Pryors and that Russell acted with the intention of depriving the Pryors of the value of the timber cut and removed from their land. It is appellees' theory that these findings, along with the finding that Thompson acted on Russell's advice made all three joint tortfeasors and as such, jointly and severally liable to the Pryors, because they acted concurrently, even though some of them may have acted independently. For this reason, appellees say, that it is immaterial that the court ruled that Interrogatories 5 and 6 should not have been submitted because the answers to the interrogatories are not inconsistent with a determination that Thompson, Ford and Russell were joint tortfeasors and, therefore, Russell would be liable for the acts of both Thompson and Ford upon the finding that either was acting at the direction and advice of Russell. Appellant, in turn, concedes that appellant could be held jointly and severally liable with Thompson and Ford for actual damages, but not punitive damages.
This is not a situation where the trial court amended a verdict incorrectly expressed under a mistake of law, in order to conform it to the manifest intention of the jury, such as we had in Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 and in Trailmobile, Inc. v. Robinson, 227 Ark. 915, 302 S.W.2d 786. On the face of the verdict, the answers to the interrogatories appear to be inconsistent in view of appellant's testimony. This would not be a matter of concern if the verdicts had been rendered in two cases consolidated for trial. See Rudolph v. Mundy, 226...
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