Opinion
37086.
DECIDED MARCH 12, 1958. REHEARING DENIED APRIL 1, 1958.
Trespass to land. Pierce Superior Court. Before Judge Roddenberry. October 4, 1957.
Memory, Barnes Memory, S. F. Memory, for plaintiffs in error.
Francis Houston, Lee S. Purdom, contra.
Where a jury returns a verdict in favor of a plaintiff upon proof of damages, such verdict is correct; but where there is no evidence showing the amount of damages, and where, as here, the plaintiff testifies that he does not know the amount of damages to certain small trees, a verdict in favor of the plaintiff for any amount of damages to such small trees is not authorized.
DECIDED MARCH 12, 1958 — REHEARING DENIED APRIL 1, 1958.
Ed Ehrensperger, Jr., brought suit against Lonnie E. Sweat and R. M. Pearson, Jr., alleging substantially as follows: That (paragraph 2) the plaintiff has been injured and damaged by the defendants in the sum of $500. (This figure changed by amendment to $300); that (paragraph 3) the plaintiff owns certain lands located in Pierce County (here follows a description of the land); that (paragraph 4) the plaintiff permitted the defendants to erect a temporary wire fence over the plaintiff's lands so that the defendants' stock could get to water but did not give the defendants permission to trespass or to damage or to cut trees from the lands; that (paragraph 5) the defendants knew the land line; that (paragraph 6) the defendant Pearson is a sharecropper, agent and servant of the defendant Sweat and that the defendant Pearson went upon the lands of the plaintiff and cut therefrom twenty large grown virgin pine trees to use as firewood and to use in firing the defendant Sweat's tobacco barn in the tobacco-curing process; that (paragraph 7) the plaintiff does not know the exact date the trees were cut but that the defendants knew also that the plaintiff discovered on January 16, 1956, that the trees had been cut and gave notice to the defendants not to cut any more trees and not to damage the plaintiff's land any further, the value of the trees being alleged to be $10 each or a total of $200. The plaintiff amended this paragraph to show the exact dimensions of the five trees cut and left lying on his land; that (paragraph 8) in cutting twenty trees, other smaller trees were damaged to the amount of $100; that (paragraph 9) the cutting and removal of the trees and damage therefrom damaged the prospective sale value of the land in the amount of $200 (by amendment the sentence alleging $200 damage was stricken from this paragraph); that (paragraph 10) the defendants were trespassers when the entries upon the lands of the plaintiff were made and the damage caused.
The defendant Sweat answered, admitting paragraphs 1, 2, 5, 8, 9, and 10 of the petition; neither admitting nor denying paragraph 3 and answering paragraph 4 of the petition by denying that he ever committed any trespass on the lands of the plaintiff and contending that he cut no trees therefrom and did not damage the property in any way, but admitting that the plaintiff permitted him to place a fence on the land as claimed. The defendant Sweat answered paragraph 6 of the petition by admitting that the defendant Pearson is a sharecropper of the defendant Sweat but denying all other allegations of the paragraph and further averring that if any timber was cut from the lands of the plaintiff by the defendant Pearson that the defendant Sweat knew nothing about it. The defendant Sweat answered paragraph 7 of the petition by neither admitting nor denying the paragraph except to admit that trees were cut and then denying all other allegations of the paragraph except the allegation that the plaintiff gave notice to the defendant Sweat that the trees had been cut.
The defendant Pearson answered substantially as did the defendant Sweat except that in paragraph 6 of the answer he admits that he did cut some timber for firewood from lands he thought belonged to the defendant Sweat, and that this was done without Sweat's permission.
The case proceeded to trial by jury, resulting in a verdict in the sum of $300 in favor of the plaintiff and against both the defendants.
The defendants filed a motion for new trial on the general grounds and thereafter amended by adding five special grounds. The court denied the motion. The defendants made a motion for a judgment in favor of the defendants notwithstanding the verdict against them, which the court overruled and denied. It is on this judgment and the judgment denying the amended motion for new trial that the case is here for review.
This case was carried first to the Supreme Court on a question of title to the lands upon which the trespass was alleged to have been committed. The Supreme Court transferred the case to the Court of Appeals. The only question presented here is whether the defendant Pearson, the sharecropper of the defendant Sweat, cut the trees from the plaintiff's lands, the trees alleged to be worth $200, and whether or not the trees which were felled injured young pine trees on which they fell, and the amount of injury to the young trees, if there was any injury. The jury were authorized to find that the defendant Pearson cut the trees from the plaintiff's lands and used them for firewood and in curing the tobacco crop grown by the defendant Pearson as a sharecropper for the defendant Sweat. The jury were authorized to find that the trees felled were worth $200. The jury were authorized to find also that the defendants knew or should have known that the trees were cut by the defendant Pearson and used as set out hereinabove. The Supreme Court held in Byne v. Hatcher, 75 Ga. 289 (3): "While a principal is not, as a general rule, liable for the wilful trespass of his agent, yet, if the trespass be committed by the principal's command, or if it is assented to by him, he is liable. Such assent or ratification may be implied from the conduct of the principal; and he cannot ratify the act of his agent in part, and repudiate it in part." The petition sets up two issues of recovery, the value of the trees felled ($200) and damage to small trees on which the trees fell when cut ($100). There is no evidence to support the verdict of $100 for damage to the small trees. The only attempted evidence as to the value was that of the plaintiff. He testified that the cut trees fell on a large number of smaller trees varying from "the size of my wrist" to smaller seedlings, but that he did not know how to estimate the damage to the small trees or the value thereof. It follows that there is not sufficient evidence to sustain the verdict for $100 returned by the jury for damage to the small pine trees.
The special grounds and the general grounds are so interrelated that we see no reason to discuss the special grounds except to say that the same ruling applies to them as we have given hereinabove regarding the general grounds.
The court did not err in denying the motion for a judgment for the defendants notwithstanding the verdict in favor of the plaintiff.
This court gives the following direction: The verdict in favor of the plaintiff is affirmed with direction that, within ten days from the time the remittitur from this court is received, he write from the verdict the amount of $100 sought as damages to the smaller trees; otherwise the judgment shall stand reversed.
Judgment affirmed with direction. Townsend and Carlisle, JJ., concur.