Pickron v. Garrett , 73 Ga. App. 61 ( 1945 )

1. The action was rightly construed as one in trespass, and the court did not err in overruling the general demurrer of the non-resident defendants to the petition.

2. Where the only two defendants against whom the verdict was rendered resided out of the county, and the finding of the jury was in favor of the one defendant on account of whose residence in the county of the suit the court acquired jurisdiction, it was proper to arrest the judgment, on motion of the defendants against whom the verdict was returned.

3. The verdict for the alleged actual trespasser, and against the defendants charged with trespass through the acts of the former, was inconsistent and repugnant and should have been set aside, and the court erred in overruling the grounds of the motion attacking the verdict.

4. It was error to charge the jury in effect that they might relieve the alleged actual trespasser and find against the abetting trespassers.

5. The remaining special grounds are without substantial merit; and, since the case is to be tried again, the general grounds are not considered.

DECIDED SEPTEMBER 7, 1945. REHEARING DENIED OCTOBER 17, 1945. Lamar Pickron, referred to herein as the plaintiff, sued R. F. Burgin, of Randolph County, and B. M. Garrett, of Early County, and B. A. Garrett, of Calhoun County, referred to as the defendants, in the superior court of Randolph County, for $4150.90. It was alleged that this sum represented the total average selling price of 90.760 feet of pine trees manufactured into lumber, at $45.75 per thousand, cut and removed by the defendant's from described lands of the plaintiff. It was alleged that B. M. Garrett and B. A. Garrett sold and conveyed the trees and timber to R. F. Burgin, the other defendant, who did the actual cutting, and that the Garretts pointed out to Burgin the land lines and the timber to be cut by him, and that they participated "in the value, proceeds and profits thereof as purchase money for said timber." It was also alleged that all of the defendants, in the cutting, felling, taking and converting of the plaintiff's timber, acted for their mutual benefit and profit, and that they were joint tort-feasors and as such were jointly and severally liable, and that the cutting of the timber was a wilful trespass making the defendants liable for the full value of the manufactured products and without deduction for labor or other expenses.

The defendant Burgin filed an answer denying liability; and the defendants, B. M. Garrett and B. A. Garrett, in a joint answer, also denied any liability. The Garretts jointly demurred to the petition, which was in two counts, upon the ground that it did not state a cause of action as to them because it alleged that Burgin converted the trees and manufactured them into lumber, and did not allege that the Garretts participated in the conversion of the trees, or in the manufacture of the same into lumber, or in the fruits thereof; and because they were improperly joined with the other defendant; and because the court did not have jurisdiction of them, as they were not residents of Randolph County, and no cause of action joint with the resident defendant was alleged. This demurrer was overruled. Exceptions pendente lite were duly filed to that ruling, and error is properly assigned thereon in the cross-bill of exceptions.

The case proceeded to trial and resulted in a verdict for the plaintiff and against the defendants, B. M. Garrett and B. A. Garrett, for $560.00. A motion in arrest of judgment was then filed by the Garretts upon the ground that the verdict was an adjudication that the plaintiff had no cause of action as to R. F. Burgin; and, as to the defendants against whom the verdict was found (not being residents of Randolph County), the court lost jurisdiction when it was determined that the plaintiff had no cause of action against Burgin, the only defendant residing in the county where the suit was filed. The plaintiff demurred generally and specially to the motion in arrest of judgment, upon the ground that it did not set forth a cause of action, was lacking in proper parties respondent in that R. F. Burgin was a necessary party, and was multifarious; and because no brief of the evidence had been approved and filed. This demurrer was overruled. The plaintiff also filed an answer to the motion in arrest of judgment, and on oral motion of counsel for B. M. and B. A. Garrett, on the ground that the answer set forth no valid defense, it was stricken by the court. The court then passed an order, sustaining the motion in arrest of judgment and quashing the verdict as to the Garretts, and vacating and setting aside the judgment entered thereon. To the rulings overruling the plaintiff's demurrer to the motion in arrest of judgment, sustaining the motion to strike the plaintiff's answer to the motion in arrest of judgment, sustaining the motion in arrest of judgment, quashing the verdict, and setting aside the judgment thereon, the plaintiff duly filed exceptions pendente lite. The plaintiff also filed a motion for new trial on the usual general grounds and on nine special grounds. Exceptions to the overruling of that motion are also contained in the main bill of exceptions. Since the cross-bill complains of the ruling on the demurrer to the plaintiff's petition, it will be considered first. 1. The demurrer of the Garretts, the two defendants who did not reside in Randolph County, to the petition of the plaintiff, presents the contention that the essential allegations constitute an action in trover, and that the case as made by the petition sounded in trover and not in trespass. While some of the allegations sound much like an action in trover, and the question raised by the demurrer is not free of all doubt, we think that the court correctly construed the action as being in trespass, and properly overruled the demurrer. Even if the petition be construed as an action in trover, it is nevertheless based on a trespass. Joint trespassers residing in different counties may be sued in either county. Code, § 2-4304. "One who procures or assists in the commission of a trespass, or does an act which ordinarily and naturally induces its commission, is liable therefor as the actual perpetrator." Burns v. Horkan,126 Ga. 161 (3) (54 S.E. 946). One who makes a written instrument purporting to convey to another sawmill rights in certain timber on lands of a third person may be sued as a joint trespasser with the person taking the conveyance who enters upon the land under the writing and cuts the sawmill timber thereon. Burch v. King, 14 Ga. App. 153 (80 S.E. 664);Zugar v. Scarbrough, 186 Ga. 310, 320 (197 S.E. 854). Counsel for the Garretts commendably concede that the plaintiff might sue all three defendants for a joint trespass in the county of the residence of either, and we think that the action was rightly construed as an action in trespass, under the authorities cited. We do not think that the holding in Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (63 S.E. 270), relied on by counsel filing the demurrer, requires a different ruling.

2. The decision of the trial court overruling the plaintiff's demurrer to the motion in arrest of judgment filed by the Garretts, the action in striking the plaintiff's answer to the motion in arrest of judgment, and the ruling sustaining the motion — thus setting aside the verdict of the jury and the judgment thereon — can best considered together. The basis of the motion in arrest of judgment was that the verdict exonerated Burgin, the only resident defendant; and that the court thereby lost jurisdiction of the Garretts, and the verdict against them alone was void as to them. Counsel for the plaintiff quite candidly concede that, if the position of the Garretts is well taken, all three of the rulings respecting the motion in arrest of judgment were correct. It seems to us that the clear-cut question presented has been definitely answered by this court. In a case apparently similar on its facts to this case, this court held that, where the only two defendants against whom the verdict was rendered resided out of the county, and the finding of the jury was in favor of the one defendant on account of whose residence in the county of the suit the court acquired jurisdiction, it was proper to arrest the judgment, on motion of the defendants against whom the verdict was returned. SeeTurner v. Shackleford, 39 Ga. App. 49 (2) (145 S.E. 913). The same rule was applied by this court in a trover suit brought against three persons jointly, only one of them residing in the county in which suit was filed. Christain v. Terry, 36 Ga. App. 815 (138 S.E. 244). The rule was recognized and applied by the Supreme Court in an action for damages for an alleged false imprisonment. Warren v. Rushing, 144 Ga. 612 (87 S.E. 775). We think that the three rulings in connection with the motion in arrest of judgment as complained of were correct, and that the judgment taken on the verdict was properly arrested and set aside.

3. Special grounds 1, 2, 3, and 7 of the amended motion for new trial attack the verdict, contending that it is totally null and void for uncertainty, ambiguity, repugnancy, and inconsistency; and that it is contrary to law because it does not cover the issues made by the pleadings and the evidence. "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code, § 110-105. Verdicts are to be upheld if capable of legal intendment, construed in the light of the pleadings, the issues made by the evidence, and the charge of the court; the presumptions are in favor of the validity of a verdict, and if possible a construction will be given that will uphold it.McCollum v. Thomason, 32 Ga. App. 160 (2) (122 S.E. 800);Swain v. Georgia Power Light Co., 46 Ga. App. 794 (169 S.E. 249); Douglas Motor Co. v. Watson, 68 Ga. App. 335, 338 (22 S.E.2d 766). "The verdict shall cover the issues made by the pleadings, and shall be for the plaintiff or defendant." Code, § 110-101. It has been held, under this section, that a verdict will be set aside for a failure to cover the issues involved. Tompkins v. Corry, 14 Ga. 118 (2); CentralRailroad v. Freeman, 75 Ga. 331 (8).

The verdict under consideration is in these words: "We, the jury, find for the plaintiff against B. M. and B. A. Garrett, to pay for 70,000 feet stumpage at $8.00 per thousand, amounting to $560.00." Manifestly this verdict is neither uncertain nor ambiguous. Its meaning is plain and clear. It is in favor of the plaintiff, but is against only two of the defendants, B. M. Garrett and B. A. Garrett; and by implication it is a finding in favor of the other defendant, R. F. Burgin. See Van Leonard v.Eagle Phoenix Mfg. Co., 60 Ga. 544; Maynard v. Ponder,75 Ga. 664 (1-c). The trial court, as well as counsel for the defendants, correctly construed the verdict as being in favor of Burgin, in its ruling on the motion in arrest of judgment, and we are affirming that ruling. Whether the verdict was void for repugnancy and inconsistency, is the controlling question. "A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside." Fleming v. Collins, 190 Ga. 210, 214 (3) (9 S.E.2d, 157). Here we have a verdict for the defendant who actually cut the plaintiff's timber, according to his admission in open court that he cut the timber in dispute, and the apparent finding of the jury that the plaintiff owned it; and a verdict against the other defendants who sold the timber to the first defendant. Two verdicts are embraced in the one. As stated by counsel for the plaintiff, there is an express verdict against the Garretts and an implied verdict in favor of Burgin, found on the same testimony and based on the same pleadings. We think that these two separate and distinct findings are irreconcilably inconsistent. The verdict in favor of Burgin was in effect a finding that he committed no trespass on the plaintiff's timber, and this was wholly repugnant to the finding that the Garretts did commit such trespass and were liable therefor. If Burgin committed no trespass, it necessarily follows that the Garretts committed none. They were guilty, if at all, because of Burgin's acts in cutting the timber, coupled with their own acts in selling it to him. It took their acts and Burgin's to place responsibility on the Garretts. It will not do to say that the jury evidently reasoned that Burgin was innocent, and therefore not liable, and that the Garretts alone should be penalized. Even an innocent trespasser is liable for the stumpage value of timber unlawfully cut and removed by him. "Where defendant is an unintentional or innocent trespasser, or innocent purchaser from such trespasser, the value at the time of conversion, less the value he or his vendor added to the property," is the measure of damages where a plaintiff recovers for timber cut and carried away. Code, § 105-2013 (2). If the Garretts were trespassers, and the jury so found, so was Burgin. If the Garretts were liable in damages to the plaintiff, and the jury so found, Burgin was liable also at least for the stumpage value of the timber, the plaintiff having conceded that he was merely an innocent trespasser. We therefore conclude that the verdict, exonerating the defendant who actually committed the alleged trespass, and relieving him of all liability, and assessing damages against the other defendants who participated in the alleged actual trespass only through the acts of the defendant relieved, is inconsistent and repugnant and must be set aside as null and void. We think that the court erred in not sustaining these grounds of the amended motion. SeeAnthony v. Anthony, 103 Ga. 250 (29 S.E. 923); Kuck v.State, 149 Ga. 191 (99 S.E. 622), and citations.

4. Special ground 8 complains of the charge of the court on the form of the verdict, and that the jury could return a verdict for the plaintiff and against the Garretts, the defendants who resided out of the county, without returning a verdict against Burgin, the only resident defendant. Ground 9 alleges error in the failure to charge the jury, even without a written request, that they could not find a verdict against the non-resident defendants without also finding a verdict against the resident defendant. Counsel designates the first of these alleged errors as a sin of commission, and the last as a sin of omission. It is not contended that the verdict would have to be for the same amount of damages against all of the defendants, or that they would necessarily have to be guilty of the same type of trespass; but merely that the resident defendant would have to be a trespasser and liable in some amount before the non-resident defendants could be legally liable for any amount. Ordinarily, a jury may find a verdict for one joint defendant and against another joint defendant; but, under the facts of this case, and for the reasons pointed out in division 3 of this opinion, the charge as complained of in ground 8 was erroneous. A charge substantially as outlined in ground 9 would have been appropriate, but we do not consider it necessary to decide now whether the failure to give such charge, in the absence of a timely written request, was reversible error.

5. The remaining special grounds are without substantial merit, and, since the case is to be tried again, we do not pass upon the general grounds of the motion.

Judgment affirmed on cross-bill; affirmed in part, andreversed in part on main bill. Sutton, P. J., and Felton, J.,concur.