Union Naval Stores Co. v. Pugh

Citation156 Ala. 369,47 So. 48
PartiesUNION NAVAL STORES CO. v. PUGH ET AL.
Decision Date04 June 1908
CourtAlabama Supreme Court

Appeal from Circuit Court, Clarke County; Norman Gunn, Special Judge.

Action by Martha Pugh and another against the Union Naval Stores Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

R. W Stoutz, for appellant.

William A. Dunn and A. L. McLeod, for appellees.

DENSON J.

This action was commenced by Martha Pugh and Sery Pugh against the Union Naval Stores Company, a corporation, to recover damages for trespass to realty. The evidence of the first witness examined in behalf of the plaintiffs developed the fact that another person (Mamie Chapman) was a tenant in common with the plaintiffs of the land, and that they three owned the land in common. Thereupon, on motion of the plaintiff's counsel and against the objection of the defendant, the complaint was amended by making Mamie Chapman one of the parties plaintiff. After the amendment was made the "defendant moved the court to require plaintiffs' attorneys to show the authority by which they assumed to represent said Mamie Chapman and make her a party to the cause. Mamie Chapman was not then in court in person, and was not heretofore represented in the cause." This motion was overruled, and the action of the court in overruling it is the foundation for the first ground in the assignment of errors that is insisted upon. Confessedly Mamie Chapman was a proper party plaintiff, and the amendment of the complaint at any time before the jury retired, by the insertion of her name as a coplaintiff, was authorized by the statute. Civ Code 1896, § 3331. The legal interest in the cause of action resides in all three of the present plaintiffs; and any one of them, in the first instance, could have used the names of all as plaintiffs, either with or without consent. Mamie Chapman, on proper application, may be protected by an indemnity against costs from those prosecuting the suit; and if she were in court in person that would be the extent of her right to arrest or impede the prosecution of the suit. Having the legal right to make her a party, no authority to counsel was necessary to be shown. Section 594, Civ. Code 1896, is inapplicable, and the motion of the defendant was properly overruled. Harris v. Swanson & Bro., 62 Ala. 299; Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358, 90 Am. St. Rep. 914.

It is elementary that, to make the defendant corporation liable for the act of the person or persons who "boxed" the timber, it must be shown that such person or persons were at the time agents of the corporation, and acting within the scope of their authority. Furthermore, the declarations or conduct of one professing to act as agent of another cannot be received as evidence against the principal, without independent proof of his agency. Nor are the declarations of an agent or officer of a corporation "competent evidence against his principal, unless made within the scope of his authority and while in the discharge of his duties in and about the particular transaction of which they constitute a part of the res gestæ." Buist v. Guice, 96 Ala. 255, 11 So. 280; Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 So. 266; Danner Land & Lumber Co. v. Stonewall Insurance Co., 77 Ala. 184; Bessemer Coal, Iron & Land Co. v. Doak (Ala.) 44 So. 627, 12 L. R. A. (N. S.) 389; Learned-Letcher Lumber Co. v. Chatchie Lumber Co., 111 Ala. 453, 17 So. 934; George v. Ross, 128 Ala. 666, 29 So. 651. Applying the foregoing principles to the evidence of the witness W. A. Smith, it is clear that the declarations of Gordon and Brewer, testified to by him, were not competent evidence to show agency, and, on a proper objection made, doubtless would have been excluded by the trial court. We are bound, however, in reviewing on appeal the rulings of the court below on objections to, and motions to exclude, evidence, to confine our consideration to the specific grounds assigned for the objections and motions; the presumption being that the court below ruled with reference to the specific questions presented. Now, the proposition presented to the circuit court in respect to the exclusion of witness Smith's evidence, as it appears by the bill of exceptions, was stated thus: "Thereupon the defendant made a motion to exclude all the testimony of the witness Smith concerning the agency of said Gordon as an agent of defendant company, on the ground that the declarations and actions of the alleged witness are not proof of agency, and no independent proof of agency had been introduced." It might be suggested that the word "agent" was intended for the word "witness," where it appears in the proposition, after the word "alleged"; but we have no authority for indulging such an intendment, especially if it would operate to put the trial court in error. Bills of exceptions are construed most strongly against the party taking the exception. McGehee's Case, 52 Ala. 224. It is clear that the ruling of the court on the motion is without error, as no declarations of the "witness" were offered in evidence.

But would the exclusion of the evidence assailed have accomplished what the defendant really desired, to wit, the exclusion of the evidence of the witness Smith on his direct examination? Was not the evidence brought out on the cross-examination the only foundation for getting rid of the effect of his evidence in chief, either by motion to exclude that evidence or by instructions to the jury? In this view, it would seem that, if the action of the court in overruling the motion involved error, injury from such error is affirmatively rebutted by the record. The action of the court in overruling the motion to exclude the evidence in reference to Smith's "conversation and transaction with McDonald at the office of defendant in Mobile" finds sufficient justification in the fact that it was brought out by the defendant, and the court was under no duty to exclude it on the motion of the party who brought it out, even though it might have properly done so. Osborn's Case, 125 Ala. 106, 27 So. 758; Toliver's Case, 94 Ala. 111, 10 So. 428; Dickens' Case, 142 Ala. 49, 39 So. 14, 110 Am. St. Rep. 17.

The fact that the taxes assessed against the defendant for the years 1902-03 and 1903-04 were paid by Gordon may not of itself be competent evidence to show that Gordon was the agent of the company, with authority to bind it for cutting or boxing the timber; but it must be remembered that evidence aliunde tending to show agency of Gordon as manager for defendant, and a recognition by defendant of that agency, had preceded this offer to show payment of taxes, and on this consideration we think the court committed no error in allowing proof that Gordon paid the taxes as a circumstance tending to show agency.

The lands on which it is averred the trespass was committed were patented to Isham Pugh, and at his death, which occurred in 1894, the plaintiffs in the cause succeeded to his title. During his lifetime Isham Pugh executed two mortgages on the lands to one Molton to secure an indebtedness due from him to Molton. The defendant offered the mortgages as evidence, and proposed "to connect said mortgages so offered in evidence, by a direct and unbroken chain, with the defendant in the cause." The plaintiffs objected to the mortgages as evidence, on the ground "that a litigation had taken place, between Martha Pugh and others and the C. W. Zimmerman Manufacturing Company, about these mortgages, and the mortgages had been canceled by said litigation." In support of said objection, the record shows: "The plaintiffs offered in evidence the entire record of the chancery cause of Martin Pugh against C. W. Zimmerman wherein said mortgages were decreed to be canceled." The defendant admitted that the mortgages offered were the identical mortgages involved in the chancery litigation, "but objected to the introduction of the record of said chancery suit, because, while convinced that the decree decreed the satisfaction of said mortgages and ordered their cancellation, it did not show that the mortgagee was not entitled to possession on the face...

To continue reading

Request your trial
16 cases
  • Lowe v. Skaggs Safeway Stores, Incorporated, 5300
    • United States
    • Idaho Supreme Court
    • March 10, 1930
    ... ... 1, 16 ... Am. Rep. 681, 686 et seq.; 14a C. J. 765-767, sec. 2829, ... notes 82-86; Union Naval Stores Co. v. Pugh, 156 ... Ala. 369, 47 So. 48; Southern Bell Tel. & Tel. Co. v ... ...
  • Alabama Power Co. v. Talmadge
    • United States
    • Alabama Supreme Court
    • October 27, 1921
    ... ... his agency. Union Naval Stores Co. v. Pugh, 156 Ala ... 369, 47 So. 48. There was such ... ...
  • Cooper v. Alabama Farm Bureau Mut. Cas. Ins. Co., Inc.
    • United States
    • Alabama Supreme Court
    • June 6, 1980
    ...(1931); fraud and deceit, Standard Oil Company of Kentucky v. Gunn, 234 Ala. 598, 176 So. 332 (1937); trespass, Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48 (1908); false imprisonment, Owsley v. Montgomery & West Point Railroad Co., 37 Ala. 560 (1861); malicious prosecution, Jord......
  • Walker v. Jones
    • United States
    • Alabama Court of Appeals
    • October 28, 1947
    ... ... several states of the Union are neither foreign to the United ... States, nor to each other, they are ... v. Caldwell, 208 Ala ... 260, 94 So. 540; Union Naval Stores Co. v. Pugh, 156 ... Ala. 369, 47 So. 48; Hackney v. Dudley, 216 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT