W.K. Syson Timber Co. v. Dickens

• Decision Date: 29 April 1906
• Parties: W. K. SYSON TIMBER CO. v. DICKENS.
• Court: Alabama Supreme Court

40 So. 753

146 Ala. 471

W. K. SYSON TIMBER CO. v. DICKENS.

Supreme Court of Alabama

April 29, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by C. C. Dickens against the W. K. Syson Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Charles L. Bromberg and Massey Wilson, for appellant.

Gregory L. & H. T. Smith, for appellee.

HARALSON J.

This is an action of trespass by the plaintiff, against the defendant for a trespass "upon a certain boom in Chickasawbogue creek, in Mobile county, alleged to have been in the possession of the plaintiff at the time of the trespass, and for cutting and breaking the fastenings of said boom, and for breaking or cutting the fastenings of certain logs in said boom, thereby causing said logs to escape from said boom, and thereby damaging plaintiff on, to wit, the 11th day of April 1903," the averment as to damage being, that "the plaintiff was put to great cost and expense in ascertaining the location of said logs, and repossessing himself thereof and returning them to a place of custody and safety and caring for there while so doing."

The complaint, as originally filed, was do murred to and the demurrer overruled, bu as amended, no demurrer was interposed, nor was the demurrer to the original complaint refiled. The defendant is in no condition to complain of the overruling of the demurrer. L. & N. R. R. Co. v Woods, 105 Ala. 561, 17 So. 41. Moreover, this ruling is not insisted on as error in argument.

The evidence tended to show, that plaintiff had some logs in Chickasawbogue creek, the last of the year, 1902, consisting of 450 logs and timbers, and he was notified by one, Syson that 35 sticks of the timber belonged to them, the defendant company, and if he did not turn them loose, they would sue him for them, and without more, suit was commenced against him for them, and he put the timbers in a place he selected as a safe one for them to await the result of the suit.

The plaintiff testified that he sent a man by the name of Lassiter, to a woman named Victoria Bernard, who owned a lake, called Wiggins Lake, which he thought was a safe place to store the timbers, and rented the same from her, and put his lumber, timbers, etc., in said lake. It appeared from the evidence that this boom was broken open and much of the timber taken away and impounded in Syson & Co.'s boom. After this, as the evidence tends to show, one Harry Gill, Syson's foreman, came in a naptha launch,--which belonged to the Syson Company,--to where the timber was stored in the lake, and claimed it as belonging to Syson; that plaintiff notified him that the property was in litigation; that Syson had entered suit for it, and that while that suit was pending, he, Gill, could not take possession of the timbers, and plaintiff proposed to hold them until that trial. "Then (employing witness' own language) apprehending that they might bother me again about it, I hired tugs and negroes and rafted it up, and put it in condition, and towed it out of Chickasawbogue and up Mobile river into Bayou Sarah, and up the McKeon creek, where it would be close to my house, where I could watch it closer, and it stayed there until the litigation ended."

That Harry Gill was the man who committed the trespass, is not denied; that he did it for the defendant company, and not for himself (though the evidence as to this is somewhat in conflict) cannot be reasonably disputed. Lassiter had no claim to the property, nor did the plaintiff owe him any thing. He was simply sent by plaintiff, as appears, to the owner of Wiggins Lake to rent the same from her for the plaintiff, and yet, we find him, as the evidence tends to show, setting up a claim to the logs and timber in the plaintiff's boom, and transferring the same to Gill. The evidence tends to show, that this was done by the procurement of the defendant company.

The defendant asked the affirmative charge, predicated on the propositions; first, because it was alleged in the complaint that the trespass was to a boom in Chickasawbogue creek, and the proof was, that it was in Wiggins Lake, and this constituted a variance; and, second, because, as defendant insists, there was no testimony in the record tending to show that Harry Gill acted in the trespass on behalf of defendant company. As to the first of these suggestions,--adverse to sustaining it,--it is sufficient to say, that the plaintiff's boom, according to the evidence, was across the north of Wiggins Lake. This lake was an inlet, forming a part of the creek. C. C. Dickens testified, that the "lake is a branch off from Chickasawbogue creek, and up in the head of it, there are two prongs, one of them to the right, where this boom was, is wholly within a piece of land that belongs to a colored woman named Victoria Benard." He was asked, "Is or is not, Wiggins Lake, on the body of water spoken of as Wiggins Lake, a part of Chickasawbogue creek?" His answer was, "Yes sir. It is a branch of Chickasawbogue creek."

Second, the testimony may be susceptible of some doubt, as above stated, as to whether Gill, when trespassing on plaintiff's boom, represented himself or the defendant company, but the testimony does tend most strongly to show, that he was acting for the company. Under these conditions, the general charge, as to this contention could not be given.

The plaintiff testified, that his boom was all broken up and eleven of the logs worth $3.00 each were lost; that the raft had been broken and loosened up and was otherwise in a bad condition; that it cost him $45.00 to have it put in condition, which was as cheap as it could be done. He was asked by his counsel, "Now did you have any person to watch it until you could carry it off?" and the witness answered, "Yes sir, we were there a week rafting on it I had four or five men rafting on it, and watching it there night and day, and that cost me thirty dollars." After the answer, the defendant objected to the statement that it cost him $30.00, on the ground, that the cost of watching the timber is not a proper element of damage, and because it is not relevant and material. If the objection did not come too late, it may be said this was a step for the preservation of the property, necessary to prevent further damage. It was plaintiff's duty to use all...