Opinion
36555.
DECIDED FEBRUARY 22, 1957.
Tort; timber trespass. Before Judge Carpenter. Morgan Superior Court. October 25, 1956.
Roberts Roberts, Orrin Roberts, for plaintiff in error.
E. R. Lambert, contra.
The trial judge erred in denying the motion for new trial.
DECIDED FEBRUARY 22, 1957.
J. Dupree Adams filed, in Morgan Superior Court, an action against Burney Autry for damages for cutting timber across the dividing line of his farm.
The petition alleged in substance that: L. C. Stone is an agent of Burney Autry, and that L. C. Stone was employed by Burney Autry on or about January 1, 1954, for the purpose of conducting logging operations; that at the time the agent damaged the petitioner he was acting within the scope of his employment; that L. C. Stone cut the timber at the direction of the defendant; that on or about January 1st, 1954, the defendant entered upon the land and cut therefrom forty-three thousand two hundred (43,200) board feet of timber and removed the same from the land, had it sawed into lumber and hauled back to his farm, the value of the timber being $80 per thousand feet; further the defendant entered upon the land and cut therefrom (5000) five thousand board feet of logs, the logs being left on the land to deteriorate, after he was stopped from cutting, valued at $40 per thousand board feet; further the defendant entered upon the lands and cut therefrom and hauled off a carload of pulpwood valued at $105; that said 43,200 board feet of timber were sawed into lumber and hauled back to the defendant's farm and used to build a large chicken house now located on the defendant's farm; that the total value of lumber cut, logs cut, and pulpwood cut is $3,761; that the defendant did not have written consent of the plaintiff to cut and remove the timber; that the defendant was a wilful trespasser and cut the timber knowing that he had no right or title to the timber; that your petitioner by and through the defendant agent, J. H. Wilson, who was cutting timber on the defendant's land in August, 1953, notified the defendant that your petitioner owned the timber and further notified him not to enter upon the land and cut over the line; and further, the petitioner himself on February 18, 1954, notified the defendant that he had cut the timber and notified him not to move the lumber then in his yard which belonged to the plaintiff, and notified him further not to cut any more timber or to enter upon the land.
The defendant filed an answer in which he alleged that: L. C. Stone was an independent contractor and not his agent; that if any damage was done to the plaintiff's property it was done without his knowledge or consent. There was also a plea of discharge in bankruptcy filed by the defendant.
Upon the trial of the case the plaintiff testified in part that: it was approximately a straight line where his property and that of the defendant's joined; that the dividing line was visible because the timber had been cut several times on the defendant's side of the line; that there had been approximately ten acres of timber cut off his property.
L. C. Stone testified in part that: he was employed by the defendant to cut the timber; that the defendant marked the trees where the dividing line was located; that the defendant was present when much of the cutting was done; that the defendant would pull his truck out when it got stuck; that the defendant himself cut part of the timber across the line; that he went by the defendant's house to get him every morning; that the defendant told him where to cut and when to stop cutting.
The defendant testified in part that: he did not go down where the cutting was in process until after it was completed; that he told Stone to cut where a sawmill man had left off; that he let Stone run the cutting just as he wanted to; that he did not have anything to do with the actual cutting; that he did not know where the dividing line was located; that he paid Stone for cutting the timber and hauling it to the mill and back.
There was evidence as to the amount and value of the timber that was cut on the plaintiff's property.
The jury returned a verdict against the defendant as a wilful trespasser. The defendant made a motion for new trial which was denied. The defendant excepted to that ruling and the case is here for review.
1. The defendant insists that the evidence conclusively showed that Stone was an independent contractor and the defendant was not responsible for his actions. With this contention we cannot agree. There was sufficient evidence from which the jury could have concluded that Stone was the agent of the defendant and not an independent contractor. Moreover, there was evidence that the defendant participated in the cutting of the timber.
The defendant having filed a plea of discharge in bankruptcy, it was necessary for a recovery that the plaintiff prove that the defendant was a wilful trespasser. Grady v. Information Buying Co., 168 Ga. 175 ( 147 S.E. 558); Covington v. Rosenbusch, 22 Ga. App. 799 ( 97 S.E. 462).
The plaintiff had the burden of proving a trespass and after having proved this the burden of evidence then shifted to the defendant to prove that the trespass was not intentional. Hawkins v. Davie, 136 Ga. 550, 551 ( 71 S.E. 873).
The plaintiff testified that there was a visible line between their property because the timber had been cut several times on the defendant's side. The defendant testified that at the time of the cutting he did not know where the line was located. ". . . A wilful trespasser can be defined in general terms as one who knows that he is wrong, while an innocent trespasser is one who believes that he is right. 45 Words Phrases, 341, and cit. The question as to whether the trespass was wilfully or innocently done is generally for the jury to determine, except in those cases where the trespasser acts with such entire want of care and reckless indifference as would clearly amount to a disregard of the rights of the other party. Yahoola River Hydraulic Hose Mining Co. v. Irby, 40 Ga. 479 (2); Georgia Railroad Banking Co. v. Gardner, 115 Ga. 954 ( 42 S.E. 250); s.c., 118 Ga. 723, 724 ( 45 S.E. 600); Southern Railway Co. v. O'Bryan, 119 Ga. 147 ( 45 S.E. 1000), and cit.; Investment Securities Corporation v. Cole, 186 Ga. 809; 810 ( 199 S.E. 126), and cit.; Strickland v. Miller, 12 Ga. App. 671 ( 78 S.E. 48); Ingram v. Smith, 62 Ga. App. 335 ( 7 S.E.2d 922, 923); 45 Words Phrases, 331 et seq." Tennessee A. G. Ry. Co. v. Zugar, 193 Ga. 386 (3) ( 18 S.E.2d 758).
There was sufficient evidence to support the verdict, and the trial judge did not err in overruling the general grounds of the motion for new trial.
2. Special grounds four and six are not complete within themselves and a consideration of them would necessitate referring to other portions of the record. Therefore these special grounds of the motion for new trial are not considered by this court. Martin v. Martin, 185 Ga. 99 (1) ( 194 S.E. 586); Touchton v. Mock, 91 Ga. App. 689, 693 ( 86 S.E.2d 699).
3. Special ground five excepts to the following charge: "I also charge you if the jury should find that Lindsey G. Stone was a wilful trespasser and that the defendant Autry, knowing that Stone was a wilful trespasser, purchased certain timber cut from the lands described in the petition, then and in that event, the plaintiff would be entitled to recover of the defendant Autry the full value of the lumber purchased by him from Lindsey Stone, if any was purchased, at the time and place of demand or suit brought, without deductions for labor and expense."
The defendant insists that the charge was error because it was not authorized by the evidence. After a careful consideration of the evidence it is concluded by this court that there was no evidence to warrant the above quoted charge. "The instructions should always be given in reference to the evidence in the particular case." Gorman v. Campbell, 14 Ga. 137. "Generally a charge by the court to the jury must be authorized by the evidence; and where a charge, though abstractly correct, is given which is not so authorized and which is calculated to confuse and mislead the jury, such charge will generally require a new trial." Sikes v. Sikes, 153 Ga. 725 (2) ( 113 S.E. 416, 24 A.L.R. 1324). Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (2) ( 76 S.E. 387, Ann. Cas. 1914A, 880); Wylly v. Gazan, 69 Ga. 506 (3).
Judgment reversed. Felton, C. J., and Nichols, J., concur.