Simmons v. Cochran
| Decision Date | 23 June 1949 |
| Docket Number | 7 Div. 993. |
| Citation | 41 So.2d 579,252 Ala. 461 |
| Parties | SIMMONS v. COCHRAN et al. |
| Court | Alabama Supreme Court |
Robinson & Parris, of Gadsden, for appellant.
T Eric Embry, of Birmingham, for appellees.
Count 1 claims damages for trespass upon the lands described and for cutting timber to the amount of 169 trees thereon during the year 1947.
Count 2 Claims damages 'for this, that heretofore, during the year 1947 the defendant, or others by his authority and direction, did enter upon the following tract of land to-wit * * * and did wilfully
and knowingly cut therefrom 169 trees during the year 1947 without the consent of the owner of said trees; the plaintiffs aver that at the time of the cutting of said timber, they had the legal title to said premises.'
The gravamen of count 4 is that during the year 1947 the servants or employees of defendant, while in the line and scope of their employment, did trespass upon the lands described, which were owned by or in possession of plaintiff, and cut therefrom 169 trees; and that said servants or agents, etc., did wantonly or wilfully and wrongfully cut and remove said trees from said lands.
Action by Mary Cochran and others against W. P. Simmons for trespass to realty, trespass to personalty, and for the statutory penalty for cutting trees.
There are fifteen assignments of error. Appellees strenuously insist that appellant's brief should be stricken and the judgment of the trial court affirmed because of the failure of the appellant to file in this court a brief in compliance with Supreme Court Rules 10 and 12, Code 1940, Tit. 7, Appendix, which prescribe the form and manner of the preparation of briefs by appellants. It is true that the brief filed on behalf of appellant does not strictly conform to the aforementioned rules, yet we do not think that it should be stricken. Counsel representing appellants should make every effort to comply with Rules 10 and 12, for a brief prepared in substantial adherence thereto is of considerable assistance to the appellate courts. We might add that we note a growing tendency on the part of many attorneys to file briefs which do not serve the purposes for which the rules were adopted. But those rules are directory, and this court has exercised its discretion in the consideration of briefs which, although not drafted in accordance with the requirements of the rules, fairly and helpfully make the points upon which appellant relies. Bell v. Fulgham, 202 Ala. 217, 80 So. 39; Brothers v. Brothers, 208 Ala. 258, 94 So. 175; Nunnally Co. v, Bromberg & Co., 217 Ala. 180, 115 So. 230. Under the practice thus established, the brief for appellant has been considered. But appellant's brief deals only with the actions of the trial court made the basis of assignments of error 2, 3, 4, and 10. Hence, the other assignments of error must be treated as waived. McDavid v. United Mercantile Agencies, 248 Ala. 297, 27 So.2d 499, and cases there cited.
Assignments of error 2 and 3 complain of the trial court's action in overruling objections of the defendant to questions which evidently had the purpose of showing that the parties who cut the timber did so as agents of the defendant. Even if it be conceded that there was error in such rulings, which we do not decide, such error was without injury to the appellant, defendant below. Such relationship was definitely established by testimony of defendant's own witnesses. Any error in the admission of testimony as to a fact which is shown by the undisputed evidence is error without injury. Southern R. Co. v. Hall, 209 Ala. 237, 96 So. 73; Bevill v. Henergar-Dooley Shoe Co., 209 Ala. 262, 96 So. 133; Cosby-Hodges Milling Co. v. Nance, 33 Ala.App. 48, 29 So.2d 575.
The trial court did not err in permitting plaintiff's witness Albert Looney to testify, in effect, that in his judgment three twelve-foot 'logs' could be cut from each of the trees felled. This was but an expression of an opinion by this witness as to the height of the trees, based on his personal observation. Bass Furnace Co. v. Glasscock, 82 Ala. 452, 2 So. 315, 60 Am.Rep. 748; Bufford v. Little, 159 Ala. 300, 48 So. 697. This disposes of assignment of error number 4.
Assignment or error 10 is that the trial court erred in giving at the request of the plaintiff the following written charge: 'I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that plaintiffs are entitled to recover under Count 3 of the complaint you are authorized to allow plaintiff the reasonable market value of the finished products from such timber.'
In Court 3 the plaintiffs charged defendant with trespass de bonis asportatis, often referred to in our decisions as trespass to goods or trespass to personalty. Form 25, § 223, Title 7, Code 1940; Gilliland & Son v. Martin, 149 Ala. 672, 42 So. 7; Miller-Brent Lumber Co. v. Lunday, 175 Ala. 160, 57 So. 722; Gray v. Alabama Fuel & Iron Co., 216 Ala. 416, 113 So. 35.
The measure of damages in such an action, where the taking is unlawful without more, is generally the value of the goods or the amount of injury done to them, as the case may be, with interest to the date of judgment. Burns v. Campbell, 71 Ala. 271; Friedenthal v. Goodloe, 202 Ala. 611, 81 So. 553; Anderson v. Tadlock, 27 Ala.App. 513, 175 So. 412.
It seems to be settled that in actions of trover where the severance of the timber was willful and the jury may award the owner damages on the basis of the value of the finished lumber manufactured from the logs converted. But such a measure of damages is authorized in such actions only where the severance was willful. White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159; Birmingham Mineral R. Co. v. Tennessee Coal, Iron & R Co., 127 Ala. 137, 147, 28 So. 679; Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 135 Ala. 579, 33 So. 547, 93 Am.St.Rep. 46; Zimmerman Mfg. Co. v. Dunn, 151 Ala. 435, 44 So. 533; Gowan v. Wisconsin-Alabama Lumber Co....
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