Opinion
1 Div. 191.
March 18, 1943.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
Action for trespass on lands by Mamie Lee Busey against C. H. McCall and others. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1940, Tit. 13, § 86.
Affirmed.
The following charges were given at plaintiff's request:
"3. The Court charges the jury that the opinions of witnesses as to the market value of property should be weighed by the jury in the light of other evidence, and the opportunity of the witness to know such value, and the reasonableness or unreasonableness of their estimate of such value. The jury are not bound to take any man's opinion of such value, but may act on their own judgment and good sense in arriving at a just value, in the light of the whole evidence."
"3-A. I charge you, gentlemen of the jury, that in the event you find from the evidence that the brothers of plaintiff, or any of them, were in the habit of attending to the business of plaintiff, that this fact was known by the defendants at the times they were dealing with her in relation to the matters involved in this suit, and that any one or more of said brothers did represent her in these matters, then she would be bound by their representations to defendants respecting the location of lines between the property of plaintiff and these defendants."
"5. The court charges the jury that the measure of plaintiff's damages in this case under the 1st count of the complaint is the difference in the market value of the land trespassed on immediately before the commission of the injuries and the market value of the land immediately thereafter."
J. D. Ratcliffe and A. C. Lee, both of Monroeville, for appellants.
Charge 3, given for plaintiff, omits the important element of the interest of witness, if any, in the outcome of the litigation. 20 Am.Jur. § 1177; 14 R.C.L. 801; Birmingham, c. Co. v. Landrum, 153 Ala. 192, 45 So. 198, 127 Am.St.Rep. 25. Charge 5 was erroneously given; its effect is to confuse and mislead. 14 R.C.L. 775; Birmingham, c. Co. v. Landrum, supra. Charge 3A was relevant to the evidence in the case and its refusal was error. Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 153 So. 261; Caldwell v. Standard Oil Co., 220 Ala. 227, 124 So. 512; So. R. Co. v. Beaty, 212 Ala. 608, 103 So. 658. The motion for new trial should have been granted in the interest of justice. Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504; German-American, etc. Co. v. Rosen, 233 Ala. 105, 170 So. 211; Birmingham Water Works v. Williams, 228 Ala. 288, 153 So. 268.
C. L. Hybart, of Monroeville, for appellee.
Charge 3 asserts a correct proposition of law. Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775. Charge 5 correctly defines the measure of damages in a proceeding of this kind. Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996; So. R. Co. v. Cleveland, 169 Ala. 22, 53 So. 767. Where charge is possibly misleading, an explanatory charge should be requested. Meighan v. Birmingham Terminal Co., supra.
Defendants' charge 3A. is abstract, misleading and confusing, and was properly refused. Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 104 So. 506.
This is an action of trespass by the appellee against appellant to recover damages to plaintiff's land resulting from the alleged acts of the defendants, in the operation of their business in cutting timber on adjacent lands, in going on plaintiff's lands with their trucks and other vehicles, making roads, and ruts, in consequence of which erosion to the soil was caused, and young growing timber was broken down and destroyed, and valuable timber cut and taken therefrom.
The defendant pleaded the general issue, and special pleas setting up a license by the plaintiff, and offered evidence tending to show license or consent by the plaintiff to said operators on her premises. This evidence was controverted by evidence offered by the plaintiff.
The assignments of error argued relate to the giving of special written charges requested by the plaintiff, the refusal of special charges requested by the defendants and the overruling of the defendants' motion for new trial.
Charge 3 given at the request of the plaintiff is in the exact language of charge 10 given for the defendant in Meighan v. Birmingham Terminal Company, 165 Ala. 591, 51 So. 775, 778, as to which it was observed: "We discover no tenable objection to charge 10." And we now observe, the worst that can be said in criticism of it is its statement that, "The jury are not bound to take any man's opinion of such value, but may act on their own judgment and good sense in arriving at a just value," tends to inculcate the idea that the jury may so act on information or knowledge obtained other than through the testimony in the case, thus giving it a misleading tendency. If defendants apprehended injurious consequences on this account, they should have requested counter explanatory instructions. Meighan v. Birmingham Terminal Co., supra.
Appellants' criticism of special written charge 5 given at the instance of plaintiff stating the measure of damages in actions of trespass on lands is, "This charge is not predicated upon a finding for the plaintiff in the first place, and a written charge in the language of this one in the hands of the jury back in the jury room is well calculated to make an impression upon them unfavorable to defendants. The effect being to confuse or mislead."
The criticism, in the first place, does not accord to the jury intelligence and honesty. In the second place it states the correct rule for the admeasurement of damages. Brinkmeyer et al. v. Bethea, 139 Ala. 376, 35 So. 996; Southern Ry. Co. v. Cleveland et al., 169 Ala. 22, 53 So. 767.
Charge 2, refused to defendants, if not otherwise bad, was fully covered by special charge No. 4, given for defendants, and by the court's oral charge.
Charge 3-A was invasive of the province of the jury on the question of plaintiff's brothers being authorized to act as her agents, and possessed confusing and misleading tendencies, and was therefore refused without error. Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 104 So. 506.
The evidence and its conflicting tendencies made a case for the jury's decision, and we are not able, after allowing all reasonable presumptions of the correctness of the jury's verdict, to affirm that the preponderance of the evidence against it is so decided, as to convince us that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
This disposes of all questions argued by appellant. We find no reversible errors on the record.
Affirmed.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.