Opinion
7 Div. 902.
November 15, 1917.
Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge.
M. M. Smith, of Pell City, for appellants. Embry Embry, of Ashville, for appellee.
There was proof upon the trial that the agents or servants of the defendant, while acting within the scope of their employment and under the direction of the president of the defendant company, trespassed upon the plaintiffs' property by cutting saplings, limbs, etc., and breaking down the fence, and that these acts were not confined to saplings or limbs upon the road bed or edge of same, but extended to the premises owned by and in possession of the plaintiffs. The evidence shows that some of the trees or saplings cut had plaintiffs' fence attached thereto, and there was proof that at some points the cutting was 35 feet from the center of the road, and which would place it on plaintiffs' land even if the road was of the first grade. See Code, § 5768, as amended by the Acts of 1911, p. 390. The defendant's president denied directing the servants to trim up along the telephone line, and claims that he told them to trim up along the edge of the public road, but this was contradicted by the witness Otis Bowley, who says they were instructed to cut out all timber along the telephone line which came in contact therewith and regardless of where it was, and that they were not warned to keep off of private property until after plaintiffs made complaint for cutting their timber. The trial court therefore erred in giving the general charge for the defendant as to count 2, which was quare clausum fregit. Nor can the giving of same be justified upon the suggestion that the bill of exceptions does not purport to set out all the evidence. The bill recites, "the foregoing being substantially all the evidence in the case," and is a sufficient recital that it contains all the evidence that was introduced. Tallman v. Drake, 116 Ala. 262, 22 So. 485. It might be that if the count only averred the trespass by the defendant that the averment could not be established under the Henry Case, 139 Ala. 161, 34 So. 389, without proof of a direction to commit the act by the governing board of the corporation, but it also avers, in the alternative, that the trespass was committed by its agents or servants while acting within the line and scope of their employment, and there was sufficient proof to take this averment to the jury. Whether or not the count as it stands would be good against demurrer we need not decide, as no demurrer was interposed. We are also aware of the rule that if the general charge is given against a party who would be entitled to recover nothing but nominal damages in a tort action, it would be error without injury, and that in this case the plaintiff proved no actual damage under the second count, but this rule cannot be here applied for the reason that the jury could have inferred that the trespass was wanton, and afforded a basis for punitive damages. Western Union Co. v. Dickens, 148 Ala. 480, 41 So. 469.
Charges 2 and 3 given at the request of the defendant hypothesized material averments of the complaint, but should have said unless you are "reasonably satisfied," instead of the stronger term, you "must believe." Farmers' Merchants' Bank v. Hollind, 76 So. 287, ante, p. 371.
There was no error in refusing the plaintiffs' requested charge 1. If not otherwise bad, it invaded the province of the jury in instructing, in effect, that the cutting was willful if the president ordered all timber removed which touched the line, whether he knew that it was the plaintiffs' or not, or that he did not think he had the right to cut it. Moreover, it may have been covered by the oral charge of the court which is not set out as the statute requires.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.