Rowland v. Gardner , 79 Ga. App. 153 ( 1949 )

1. The verdict is supported by the evidence on both counts. The jury was authorized to find that the defendant was a wilful trespasser. The verdict is not void for uncertainty and ambiguity because it is in a lump sum based on the two counts.

2. The cause of action alleged in count 1 of the petition, for damages for the wilful cutting and removing of timber from the lands of the plaintiff, was an action in trover; and the plaintiff could recover the highest amount proved between the time of the conversion and the trial.

(a) The action in count 1, being in trover and for damages, amounted to an election for such a recovery.

(b) The excerpts from the charge, complained of in special grounds 2 and 3 of the amended motion, do not show error.

3. The court did not err in overruling the motion for a new trial.

DECIDED APRIL 14, 1949. REHEARING DENIED APRIL 22, 1949. Mrs. Irene Harris Gardner Sued L. O. Rowland for damages of $5000, her petition containing two counts.

Count 1 alleged in substance that the plaintiff was the owner of 68 acres of land, more or less, in Terrell County; that during the year 1946, the defendant wilfully entered upon the plaintiff's land and cut and removed therefrom and converted to his own use certain described timber, of the value at the time of bringing the suit of $4000.

Count 2 alleged in substance that the defendant entered upon the lands of the plaintiff without authority and committed a wilful and intentional trespass thereon with logging trucks, cranes, loading devices, snaking machines, and with other things unknown to plaintiff; and that the use of these instrumentalities resulted in the destruction of young timber and trees and damage to growing crops on the plaintiff's land in the sum of $1000.

The defendant filed his answer to both counts of the petition, in which he denied the material allegations thereof and alleged that he was cutting timber on the land adjoining that of the plaintiff, and that, if he trespassed upon any of the lands of the plaintiff, he was innocent and in good faith because he did not know that he was on the lands of the plaintiff.

Upon the trial of the case the plaintiff introduced evidence which, construed most favorably in support of the verdict, authorized the jury to find that the defendant cut from the land of the plaintiff sufficient timber to make, when manufactured into lumber, 38,740 board feet.

A number of witnesses testified as to the value of the lumber. H. L. McPherson, a witness for the plaintiff — and the man who sold the timber off his property to the defendant — testified that in the year 1946 he bought lumber at the market price, valued at from $90 to $250 per thousand feet. W. J. McMath testified for the plaintiff that he had been buying lumber during the past year or so, and that the highest he had paid for pine lumber during that time on the local market at Dawson was $180 per thousand feet. This witness also testified that lumber was higher at the time of the trial (July 7, 1948) than in 1946. Wade Hass testified for the plaintiff in part as follows: "I am familiar with prices of lumber in Dawson during the last two years. I would say the average price of pine lumber is from $120 to $125. I bought some and paid $185 per thousand. It is high if you have to buy it. Poplar is a good price too. Yes, sir, all lumber is high right now." None of these witnesses undertook to testify as to the value of the lumber manufactured from the timber taken by the defendant from the lands of the plaintiff at the time of the conversion of the timber, or at the time of the bringing of the suit, or at the time of the trial. However, the plaintiff testified in substance that the market value of the lumber manufactured from her trees was $100 per thousand feet; and there being no evidence to the contrary, the jury was authorized to find this to be the value thereof.

The defendant, testifying in his own behalf, stated in substance that he cut 28,274 feet of timber in that particular place where there was a controversy about the difference in the land lines; that he cut this in good faith believing that he was on the land of McPherson from whom he had bought the timber located on his land; that McPherson had pointed out the lines to him as best he could; that his logging man sent word to him that they were over the line on the property of someone else; and that he immediately went out there in his jeep and stopped the cutting. He testified that the value of the timber which was cut from the lands of the plaintiff in 1946 was from $12 to $15 per thousand feet on the stump.

In support of count 2 for damages to the young timber left on the property, Tom Wilson, a witness for the plaintiff, testified substantially that he has been living in the vicinity of the property in question for the past 9 years; that he farms a part of the property of the plaintiff; that he is familiar with the line between the property of the plaintiff and the McPherson property; and that in his opinion the defendant did some damage tearing down little trees on the property of the plaintiff. Wade Hass testified for the plaintiff in substance that he observed the condition of the woodland after the defendant had cut timber from the property of the plaintiff in question, with reference to the young trees; that before the cutting the growth was thick; and that since the cutting the plaintiff "won't have much timber left for several years to come." The plaintiff testified substantially that she examined the property after the cutting and observed that they had done a little damage to the young timber; that in getting out they had run over the young trees; that she asked $1000 as damages for this and that she did not think this sum unreasonable. She and other witnesses also testified that in hauling logs away from the premises the defendant crossed one of the plaintiff's fields in which Tom Wilson had a crop of peanuts growing, and that one of the logs was left in that field.

The jury returned a verdict for the plaintiff for $3000 and judgment based thereon was accordingly entered. The defendant filed a motion for a new trial on the general grounds, which was amended by adding five special grounds. The trial judge overruled the motion, and this judgment is assigned as error. 1. Special ground 1 of the amended motion for a new trial contends that the verdict is totally null and void for uncertainty and ambiguity and is contrary to law because it does not cover the issues made by the pleadings and the evidence; that, since the case was brought in two counts, first for the recovery for timber cut from the land of the plaintiff, based on the manufactured value of the lumber produced therefrom, and second, for damages based on a trespass to the realty caused by damaging the young trees remaining on the property and injury to growing crops, the verdict in a lump sum, not stating the amount found for the lumber produced from the timber taken from the land of the plaintiff, and not stating the amount found for damages based on a trespass to the realty caused by damaging the young trees and injury to the growing crops, is void for uncertainty and ambiguity. The defendant also contends in this ground of the amended motion that the charge of the court, instructing the jury in substance, if they found in favor of the plaintiff on both counts, to return their verdict in one amount for the entire recovery, is erroneous and misleading.

Special ground 4 of the amended motion contends that the verdict is contrary to law and the evidence, because the evidence does not warrant a finding by the jury that there was a wilful and intentional trespass by the defendant.

Special ground 5 contends that the verdict is contrary to the law and the evidence and is without evidence to support it.

Each of the foregoing special grounds is here considered in connection with the general grounds of the motion for a new trial.

(a) Both counts of the petition were supported by some evidence, and the verdict of the jury for $3000 is within its range. As to count 1, the jury was authorized to find that the defendant cut from the land of the plaintiff a sufficient amount of timber to make, when manufactured into lumber, 38,740 board feet, and that the highest proven value thereof between the time of the conversion and the time of the trial was $100 per thousand. The burden of showing good faith in committing the conversion was upon the defendant, as well as the amount of deduction claimed by reason of expenditures of money and labor in manufacturing the timber into lumber. Taylor v. Hammack, 61 Ga. App. 640 (2) (7 S.E.2d 200). The jury was authorized to find that the line between the property on which the defendant had bought the timber and the property of the plaintiff was pointed out to the defendant; that this line was marked through the woods by blazed trees; and that the defendant employed a man to log this timber. The defendant offered no testimony that he had pointed out this line to his logger or otherwise cautioned him not to cross over it. Whether or not the defendant carried the burden of showing his trespass to be innocent or unintentional, was a proper question for the jury, and was by the jury resolved against the contentions of the defendant. Ingram v. Smith, 62 Ga. App. 335 (7 S.E.2d 922).

As to count 2, the testimony of witnesses for the plaintiff as set forth in the statement of facts, and the testimony of the plaintiff herself in substance that in her opinion the damage to the young trees left on the property is in the amount of $1000, although weak and somewhat unsatisfactory, authorized the jury to return a verdict for the plaintiff for some amount up to $1000. The measure of damages in cases of trespass to real property is the difference in the value thereof immediately before and immediately after the same is committed, but this may be shown by the opinion of witnesses, admitted without objection, as to the amount of damage which resulted from the destruction of the young trees. Southern Ry. Co. v. Herrington, 128 Ga. 438 (2) (57 S.E. 694).

(b) As has been pointed out, both counts of the petition were supported by some evidence, and it was proper for the jury to return the verdict in one sum without designating how much was found on each count. In Zemurray v. Mansor, 28 Ga. App. 602,604 (112 S.E. 296), it was held: "It has never been the practice in this State, where the plaintiff's petition is laid in more than one count, that there should be a verdict on each count, but the practice has been to take a general verdict for such amount as may be found to be due under the evidence on all of the counts." The rule is different where the evidence sustains only one count and the verdict is in a gross sum for the plaintiff without specifying upon which count it is based.Blanchard v. Tucker, Willingham Co., 34 Ga. App. 405 (129 S.E. 908); Southern Ry. Co. v. Hardin, 107 Ga. 379 (33 S.E. 436). "A suit in two counts based upon two separate but similar causes of action constitutes but one case." GeorgiaCasualty Co. v. McRitchie, 42 Ga. App. 488 (156 S.E. 458). While the two counts in the petition in this case were technically on different causes of action, actually the wrongs complained of were embodied in one transaction. The damage sued for in the second count was inflicted in the removal of the timber sued for in the first count, and the causes of action are of such a similar nature that they constitute but one case. Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity. Code, § 110-105. Verdicts should be construed so as to stand if practicable. Mayor c of Macon v. Harris, 75 Ga. 761 (10).

The presumptions are in favor of the validity of the verdict of a jury. Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (5) (58 S.E. 244). Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it and one of which would defeat it, it will not on this account be set aside, but will be given a construction which will uphold it. Atlantic Birmingham Ry. Co. v. Brown, 129 Ga. 622 (4) (59 S.E. 278).

This case comes under the ruling in Gainesville DahlonegaElectric Ry. Co. v. Austin, reported first in 122 Ga. 823 (50 S.E. 983), and again in 127 Ga. 120 (56 S.E. 254). When that case was first before the Supreme Court it was held that each count of the petition set forth a cause of action based on the same transaction, but the causes of action were not the same, and in determining liability different proof would be required and different rules of law would be applicable. This appears in122 Ga. 826. When the case was before the court again it was held that it was not incumbent on the trial court to deal separately in its charge with the two counts in the petition as though two distinct and independent cases were on trial, nor to instruct the jury to inform the court on which count they found in the event they returned a verdict for the plaintiff.

The verdict is supported by the evidence, the jury was authorized to find that the defendant was a wilful trespasser, and the verdict is not void for uncertainty and ambiguity because it is in a lump sum on the two counts. The general grounds and special grounds 1, 4, and 5 present no good cause for a new trial.

2. Special grounds 2 and 3 contend that the trial court erred in charging the jury in substance that, in the event they found the defendant removed timber from the plaintiff's land as wilful trespasser, then the plaintiff would have the right to elect and accept the highest proven value for the manufacture of the lumber between the time it was cut and removed and the trial of the case. It is contended that at most, under Code § 105-2013, the right of the plaintiff was limited to the recovery of the full value of the property at the time and place of demand or suit, without deduction for the labor and expense of the defendant. It is also contended that the charge complained of was based on the law of trover, and that the action in the instant case is one of trespass to which the charge on trover had no application. It is true that count 2 of the petition alleged a case of trespass quare clausam fregit, but it is for the recovery of damages to the young timber left and is not for the same timber that was taken from the property. The action for the timber taken from the land is confined to count 1, and is an action in trover. Taylor v. Hammack, supra; McCann Lumber Co. v. Hall, 77 Ga. App. 455 (2c) (49 S.E.2d 150). In trover cases, where there are to be no setoffs or credits and the suit is for the value of the property detained, the plaintiff may recover the highest amount which he shall prove between the time of the conversion and the trial. Code, § 107-103.

The leading case on this subject is Milltown Lumber Co. v.Carter, 5 Ga. App. 344 (63 S.E. 270). In that case Judge Powell, speaking for this court, wrote a very exhaustive opinion holding that where timber is wrongfully cut from land and carried away, the owner has an election of remedies. He may sue in trespass quare clausam fregit, or since the trees become personality when severed, he may maintain trover or any other form of action appropriate to recovering the possession of personality, or for damages for the injury to or conversion of that class of property. After discussing the history and origin of § 3918, Code of 1895, which is the same as § 105-2013, Code of 1933, Judge Powell reached the conclusion that the Code section primarily relates only to trover suits, and stated that, "Until some other basis for recovery appears in the evidence, the plaintiff is entitled to recover, at his election, either the full value of the property at the date of the conversion, . . or the highest amount which he can prove between the time of the conversion and the trial," citing Jaques v. Stewart, 81 Ga. 81 (6 S.E. 815); Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S.E. 24).

The Milltown Lumber Company case holds that Code § 105-2013 applies to trover cases, and that subparagraph 1 thereof, providing that, "Where defendant is a wilful trespasser, [the measure of damage is] the full value of the property at the time and place of demand or suit, without deduction for his labor or expense," does not limit the plaintiff to the recovery of a lesser measure of damage than that provided for in trover cases generally, because the decisions from which the Code section originated did not so limit the recovery of the plaintiff. Accordingly, the jury in the instant case was authorized to find for the plaintiff the highest proven value between the time of the conversion and the trial. The action in count 1, being in trover and for damages, amounted to an election for such recovery. See McCann Lumber Co. v. Hall, supra, headnote 2.

The case of Tennessee, Alabama and Georgia Ry. Co. v.Zugar, 193 Ga. 386 (2) (18 S.E.2d 758), does not overruleMilltown Lumber Co. v. Carter, supra, as to the measure of damages in trover cases growing out of the wilful cutting and carrying away of timber provided for in Code § 105-2013. TheMilltown Lumber Company case was cited by the Supreme Court in the Zugar case, which shows that it did not disapprove the rule laid down therein.

The excerpts from the charge complained of in special grounds 2 and 3 do not show error, and these grounds of the amended motion are without merit.

The court did not err in overruling the motion for a new trial as amended.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed. MacIntyre, P. J., Gardner and Townsend,JJ., concur. Sutton, C. J., and Felton, J., dissent.