Opinion
31757.
DECIDED OCTOBER 29, 1947.
Damages; from Fulton Superior Court — Judge Hooper. June 23, 1947.
Miller Head, for plaintiff in error.
Augustine Sams, Grigsby H. Wotton, contra.
1. There being some evidence to support the verdict, this court is without jurisdiction to entertain assignments of error that the verdict is contrary to the evidence. This is a question that is addressed to the discretion of the trial judge, upon whom is imposed the duty of being satisfied with the verdict before he approves it. Bell Brothers v. Aiken, 1 Ga. App. 36(2) (57 S.E. 1001); Mayor c of Gainesville v. Henderson, 12 Ga. App. 126(4); (76 S.E. 1034); Aycock v. State, 62 Ga. App. 812 ( 10 S.E.2d 84); Sisk v. Landers, 67 Ga. App. 538 ( 21 S.E.2d 449).
2. In an action by the plaintiff for the recovery of timber cut from his lands and carried away, the measure of damages is the full value of the property at the time and place of demand or suit, without deduction for labor or expense, if the defendant is a wilful trespasser; if the 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. Whether the defendant is a wilful trespasser, or an unintentional or innocent trespasser, if either, may be a question for the jury. See Code § 105-2013; Hammontree v. Cagle, 151 Ga. 1 ( 105 S.E. 606); Singer v. Shellhouse, 175 Ga. 136 ( 165 S.E. 73); Taylor v. Hammack, 61 Ga. App. 640 ( 7 S.E.2d 200); Milltown Lumber Co. v. Carter, 5 Ga. App. 344 ( 63 S.E. 270).
3. A ground of a motion for a new trial complaining of the admission or rejection of documentary evidence, which does not set forth a copy of the document or its substance in the ground itself, or by properly identified exhibit attached to the motion for new trial as part of such ground, but is merely referred to in the motion as being set out in the brief of evidence as an exhibit, is insufficient upon which to base an assignment of error in a bill of exceptions complaining of the refusal of a new trial. See Williamson v. Prather, 188 Ga. 545 ( 4 S.E.2d 140); Ford v. Blackshear Manufacturing Co. 140 Ga. 670(2) (79 S.E. 576); Ewing v. State, 183 Ga. 127(3) (187 S.E. 628); Hester v. Muscogee Motor Co. 184 Ga. 49 ( 190 S.E. 591); Sims v. Sims, 131 Ga. 262 ( 62 S.E. 192); Head v. State, 144 Ga. 383 ( 87 S.E. 273); Stanford v. State, 153 Ga. 219, 231 ( 112 S.E. 130).
DECIDED OCTOBER 29, 1947.
On November 29, 1945, C. C. Castleberry filed suit in the Superior Court of Fulton County, against West Lumber Company, a Georgia corporation, alleging wilful and intentional trespass by West Lumber Company in cutting and removing 285 pine, poplar, and oak trees from a certain portion of land-lot number 173 of the 18th district of DeKalb County, said land belonging to the plaintiff; and further alleging that said trees so removed contained 80,000 feet of original forest timber which was worth $100 per thousand feet when converted into lumber or the sum of $8000. The plaintiff asked for the full value of the trees as converted without deductions for labor and expense.
On January 10, 1946, West Lumber Company, answered by general denial, stating that it had never knowingly cut any timber or in any way entered upon the lands of the petitioner, but admitting that it did hold, subject to the order of the court, $310.46, the value of the timber removed from the property in controversy.
Without detailing the testimony of each witness, the jury was authorized to find from the evidence produced upon the trial, the following facts: That C. C. Castleberry, the plaintiff, owned approximately 10 acres of land in land lot number 173 in the 18th District of DeKalb County; that this land was heavily timbered in original forest pine, oak and poplar; that on Christmas Eve day of 1944, he discovered that 285 trees had been cut from his property by West Lumber Company and that these trees contained logs which produced slightly in excess of 80,000 feet of lumber. The testimony further shows that the defendant had purchased from L. H. Hall the timber rights to 150 acres of land in land lot number 173 of the 18th District of DeKalb County; that Mr. West and Mr. Jenkins, representatives of West Lumber Company, had been informed by Mr. Hall that contained in this land was a boundary of approximately 10 acres belonging to the McCurdy estate (this land was purchased by the plaintiff from the McCurdys); that before Hall sold the defendant corporation the timber on his part of lot number 173, he, not knowing the boundaries of the 10 acre McCurdy tract, told Mr. West and Mr. Jenkins while on the land with them, that "right in here somewhere from that old road as set out on my plat, is a 10-acre-tract marked `McCurdy Property.'" He also told them that "I had a deed on the public records which described that property." Thereafter, agents and servants of the defendant, without determining the boundaries of the plaintiff's tract, cut and removed from said tract sufficient timber to make the amount of lumber hereinbefore mentioned. Mr. Jenkins of West Lumber Company contacted Mr. Castleberry and took him to the property and discussed with him a settlement for cutting his timber but that no actual offer or acceptance was ever made.
The testimony showed that trees on the stump in this section of DeKalb County had sold from $7 to $25 per thousand feet and that number 2 lumber sold from $60 to $75 per thousand feet and that grade number 1, known to the trade as "B" or better, sold from $70 to $150 per thousand feet from the yards of the lumber companies; and that the lumber made from the logs cut and removed from the plaintiff's land by the defendant corporation was of high grade.
The evidence also disclosed that the plaintiff, on a visit to the land from which the timber was cut, with a representative of the defendant, stated that he would not make demand on the defendant to cease cutting the timber because he did not know for sure where the line was, and that he did not want to become liable to the defendant for stopping the defendant from cutting timber where it might later be determined that the defendant had the right to cut.
Upon the trial of the case the jury returned a verdict in favor of the plaintiff in the sum of $2500, and judgment for the plaintiff based thereon was entered by the court.
Thereafter the defendant filed a motion for new trial based on the general grounds. This motion was later amended by adding special grounds 4 to 14 inclusive. By special grounds 4 to 7 inclusive, it is contended that the verdict is unsupported by the evidence, grounds 4 and 5 complain of lack of evidence to support the verdict in the particular sum of $2500; special ground 7 complains of lack of evidence to show bad faith, or evidence upon which to find the defendant to be a wilful trespasser, insisting that the evidence demanded a finding of the utmost good faith or that if the defendant was a trespasser at all, that it was an unintentional or innocent trespasser; and by special ground 6 it is contended that the evidence is not sufficient to support a verdict finding it took any timber from the plaintiff's land. Special grounds 11 to 14 inclusive, allege errors in the court's charge and the failure to charge respecting the measure of damages. Grounds 11, 12, 13 complain of excerpts from the court's charge as follows: Ground 11, "Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit without the deduction for his labor or expense. That refers to the full value of the property in the condition in which the property was at the time, according to plaintiff's contention." Ground 12, "Our law provides that to cut timber, take it away and manufacture it into lumber is a continuing conversion, and that if the owner elects to sue for the conversion of the severed logs or that product into which they have been manufactured he may recover, if he is entitled to recover damages for the conversion of such property, he is entitled to recover the article or its full value as damages." Ground 13, "The foreman: in a request for an additional charge: The question is, your Honor, if we don't find a wilful trespass by the defendant on this property, what the fair market value would be the jury would be allowed to charge? "The court: It would be the fair market value of the timber — no, it would be the fair market value of the lumber — "The foreman: That's right." "The court: — As of the date the suit was filed, less the value which had been added to the timber by the processing or efforts of the defendant. In other words, that would make it virtually the value of the timber itself. The law provides that it would be the value of the timber of the day of conversion, which, in this case, is contended to be the day suit was filed, that is the value of the timber, I don't mean lumber, on the day the suit was filed. But the way to arrive at that would be to take the market value of the lumber as of the date of conversion, which is the day the suit was filed, and subtract from that the value that had been added to it by the defendant." Special ground 14, alleges error because of the failure of the court to charge in accordance with the defendant's timely written request, as follows: "Where the plaintiff recovers for timber cut and carried away, the measure of damages is: one who wilfully and knowingly trespasses, the full value of the property at the time and place, without any deduction for his labor or expense. Where the defendant is an unintentional or innocent trespasser, or an innocent vendee from such trespasser, the value at the time of conversion, less the value he or his vendor added to the property. That is, less any expenditure that might be made on it."
Special grounds 8, 9, and 10 allege error because the plaintiff was permitted to introduce his deed by which he claims title to the property, over timely objection of the defendant's counsel, on the ground that while the land claimed by defendant was in land lot number 173, the deed described the land as being in lot number 176. None of these grounds set forth a copy of the deed, or its substance in the grounds themselves; nor is there a properly identified exhibit of said deed attached to the motion as a part of said grounds, but it is merely referred to in ground 9 as being in the brief of evidence as exhibit number 1.
On June 23, a judgment was entered overruling the defendant's motion for a new trial as amended, and error is assigned on this judgment.
The parts of § 105-2013 of the Code applicable to this case provide as follows: "Where plaintiff recovers for timber cut and carried away, the measure of damage is: 1. Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit, without deduction for his labor or expense. 2. 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."
In order to entitle the plaintiff to recover in an action based on the foregoing Code section, evidence must be produced sufficient to authorize the jury to find (a) that the plaintiff owned the land on which timber was growing, (b) that the defendant converted a specific quantity of this timber, and (c) what the full value thereof was at the time and place of demand or suit. The jury was authorized to find from the evidence that the plaintiff owned the land from which the defendant wrongfully cut and removed sufficient timber from which as much as 80,000 feet of lumber was manufactured; that no demand for settlement was made of the defendant by the plaintiff and that the full value of the lumber was of sufficient amount per thousand feet at the time of the bringing of the suit to gross as much as $2500. There was sufficient evidence for the jury to have found that the defendant was a wilful trespasser. However, upon the proof of title in the plaintiff, conversion by the defendant and value as herein outlined, the burden of proof to show bad faith, or that the defendant was a wilful trespasser, is not on the plaintiff, but is on the defendant to show that he was an unintentional or innocent trespasser acting in good faith. See Milltown Lumber Company v. Carter, 5 Ga. App. 344, and Taylor v. Hammack, 61 Ga. App. 640. There being some evidence to support the verdict, this court is without jurisdiction to entertain assignments of error that the verdict is contrary to the evidence. This is a question that is addressed to the discretion of the trial judge, upon whom is imposed the duty of being satisfied with the verdict before he approves it. Bell Brothers v. Aiken, 1 Ga. App. 36 (2); Mayor c. of Gainesville v. Henderson, 12 Ga. App. 126 (4); Aycock v. State, 62 Ga. App. 812 (1); Sisk v. Landers, 67 Ga. App. 538 (1). The general and special grounds 4 to 7 inclusive fail to require a new trial.
2. The excerpts from the charge of the court, alleged to be error in special grounds 11 to 13 inclusive, and the alleged failure of the court to give in charge the defendant's request contained in special ground 14 of the amended motion for new trial, are next considered together, all being interrelated. Special grounds 11, 12, and 13, contend that certain specific evidence and the evidence generally rendered this charge as to the measure of damages, contingent upon the jury finding that the defendant was a wilful trespasser, inapplicable to the case and prejudicial to the defendant. Had a verdict been demanded by the evidence that the defendant was an unintentional or innocent trespasser, this position of the defendant would be well taken. However, where the jury, as in this case, was authorized to find that the defendant was a wilful trespasser, and where the defendant failed to carry the burden of proof that he was, if a trespasser at all, an unintentional or innocent trespasser, the court properly submitted to the jury the law respecting the measure of damages, both in case the jury should find the trespass, if any, was wilful, and in case the jury should find the trespass, if any, was unintentional or innocent. The court charged this in the substantial language of the Code section herein quoted. Special ground 14 alleges error on account of the court's failure to charge a request which is substantially what is assigned as error in the excerpts contained in special grounds 11, 12, and 13. This request contains substantially the principle of law respecting the measure of damages applicable to this case, but it was fully covered by the charge. In an action by the plaintiff for recovery of timber cut from his lands and carried away, the measure of damage is the full value of the property at the time and place of demand or suit, without deduction for labor or expense, if the defendant is a wilful trespasser; if the 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. Whether the defendant was a wilful trespasser, or an unintentional or innocent trespasser, if either, may be, and in the instant case was, a question for the jury. See Code § 105-2013; Hammontree v. Cagle, 151 Ga. 1; Singer v. Shellhouse, 175 Ga. 136; Taylor v. Hammack, supra; Milltown Lumber Company v. Carter, supra. The court did not err in giving in charge the excerpt complained of in special grounds 11, 12, and 13, and since the request contained in special ground 14 was fully covered by the charge, these grounds of the amended motion for new trial are without merit.
3. Special grounds 8, 9 and 10 of the amended motion for new trial allege error on account of the introduction of the deed under which the plaintiff claims title to the 10-acre-tract from which the conversion of his timber took place, because the deed recited that said land was in land lot number 176, and the other evidence of the case showed said land to be in land lot number 173, it being contended that the deed was inadmissible and that its admission in evidence over timely objection of the defendant was harmful and prejudicial to the defendant. Counsel for the plaintiff insist in their brief upon the application of the rule that a ground of a motion for new trial complaining of admission or rejection of documentary evidence, which does not set forth a copy of the document or its substance in the ground itself, or by properly identified exhibit attached to the motion for new trial as part of such ground, but merely refers to it in the motion as being set out in the brief of evidence as an exhibit, is insufficient upon which to base an assignment of error in a bill of exceptions complaining of the refusal of a new trial, and insist XXX these grounds of the amended motion for new trial be therefore not considered. Since these grounds are subject to the criticism thus pointed out, they are not considered by this court. See Williamson v. Prather, Ford v. Blackshear Manufacturing Co., Ewing v. State, Hester v. Muscogee Motor Co., Sims v. Sims, Head v. State, and Stanford v. State (supra).
The judgment overruling the defendant's motion for new trial as amended is without error.
Judgment affirmed. MacIntyre, P. J. and Gardner, J., concur.