Postal Telegraph Co. v. Lenoir , 107 Ala. 640 ( 1894 )

HEAD, J.

This is an action of debt brought by the appellee against the appellant to recover the satutory penalty for wilfully and knowingly cutting down certain trees on the lands of the plaintiff without her consent. Code, § 3296.

The bill of exceptions contains a very meagre statement of facts, but it purports, nevertheless, to contain all the. evidence. It was not shown by any positive tes-, timony at what time or by whom the trees in question were cut. It appears from the testimony of Mrs. LeNoir that they were cut some time'in the summer of 1893, and from the testimony of another witness that at the time of the cutting a telegraph line was being erected over plaintiff’s lamí. This witness testified “that at the time the telegraph line was erected on the land of the plaintiff he saw a gang of men cutting down the trees and saplings for which this suit was brought, and asked one of them what line of telegraph it was.” The witness was then asked by the plaintiff, against defendant’s objection, what reply was made to the question. The court overruled the objection, and the witness said that “one of the gang answered that it was the Postal Telegraph Company.” In this ruling there is manifest error. The declaration was not admissible as a part of the res gestae nor was it competent as the declaration of an agent made in the course of his agency. There was no independent proof of the agency or authority of the person who made the statement, and without such proof Ins declaration was inadmissible. The rule is well settled, that the declarations or conduct of one professing to act as the agent of another cannot be received as evidence against the principal without independent proof of his authority. — Home, Protection of North Ala. v. Whidden, 15 So. Rep. 567 ; Buist v. Guice, 96 Ala. 255 ; Talladega Ins. Co. v. Peacock, 67 Ala. 253; Calbreath v. Cole, 61 Ala. 139. With this declaration excluded, there is absolutely nothing in the testimony to connect the defendant with the cutting of the trees in question, unless it be the single fact, that the company which owned the line of telegraph wires across the land of Mrs. LeNoir, was the Postal Telegraph Cable Company. It is apparent, therefore, that the giving of the affirmative charge for the plaintiff, was error, for which the judgment must be reversed.

As the cause is to be remanded, we will state the principles which control the case, and which will dispose of all the questions that are likely to arise on another trial. It should be remarked in the first place, that however defective and insufficient the second and third pleas may haye been, if issue was taken thereon, and the averments of either plea were proven, the defendant was entitled to a verdict As was said in McKinnon v. Lessley, 89 Ala. 625, “The doctrine is too well settled and has been too long established in this court to be now questioned, that if the parties make up a false issue evidence must bo received upon it, and it must be submitted to the jury.” On the trial in the lower court there was evidence tending to establish the truth of the third plea, and it should have been left to the jury to say whether it was proven to their reasonable satisfaction.

The defendant should be allowed to show, if it can, that the trees in question were cut under the honest impression on the part of its agents or servants, that they were on the land of Gray or other parties who had given them permission to cut down on their lands such trees as might be necessary for the proper construction of the telegraph line. The statute under which this action is brought being highly penal must be strictly construed. Grooms v. Hannon, 59 Ala. 510; Russell v, Irby, 13 Ala. 131; Bettis v. Taylor, 8 Port. 564.

In the case of Russell v. Irby, 13 Ala. 131, which has been many times cited in the subsequent decisions of this court, it was held that the statute does not extend to a case where, by mistake, the party goes beyond his own boundary and is under the impression that he is cutting on his own lands. In the opinion, the following language taken from the case of Batchelder v. Kelly, 10 N. H. 436, based on a similar statute, was quoted with approval: “It must appear that the act was done knowingly and willfully, and not through mistake or accident;, in which latter case the party would be entitled to recover only the value of the injury he had sustained. The general tenor of the statute is such as to wholly preclude the idea that it was designed to apply to unintentional' trespass.” This latter remark, it was held, applies with equal justness to our statute.

While the witness, Grantham, may not be allowed to testify in terms that he honestly b.elieyed or supposed. that the trees cut were on the lauds of Gray or other' parties who had given the consent above mentioned, all the circumstances of the transaction going to establish such facts may be given in evidence, and it will be for the jury to determine, under proper instructions from the court, whether defendant’s agents and- servants knowingly and wilfully cut the trees, or whether they cut them under the honest belief that the owner of the land had given them permission to do so.

To guard again'st any misconception, we add, that the acts of defendant’s agents and servants, in the prosecution of the business for which they, were employed and in the general line of their authority, were the acts of the defendant itself. The relation of agency, however, must be established by him who asserts its existence.

For the errors mentioned the judgment is reversed and the cause remanded.