( c) A petition alleging a wilful trespass by knowingly entering upon the lands of the plaintiffs and cutting and removing the timber therefrom, and seeking to recover the full value of the manufactured product at time of conversion states a case sounding in trover for the conversion of the timber, and is not a case of trespass quare clausum fregit seeking to recover for the injury to the real estate. See Taylor v. Hammack, 61 Ga. App. 640 ( 7 S.E.2d 200). ( d) In such case the plaintiffs have exercised the election to recover the value of the property at the time of the conversion, instead of a recovery of 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.
The authorities cited in the Milltown case ( Jaques v. Stewart, 81 Ga. 81, 6 S.E. 815, and Bank of Blakely v. Cobb, 5 Ga. App. 289, 63 S.E. 24), do not support the rule stated in the Milltown case. All decisions of the Court of Appeals subsequent to the Milltown case, which have applied the incorrect rule therein set out, are disapproved. The language of § 105-2013, fixing the measure of damages applicable "where plaintiff recovers for timber cut and carried away," could not be more specific or definite; and this Code section states the correct measure of damages in all actions, whether in trover or trespass, for timber cut and carried away. Compare: Lawson v. Branch, 191 Ga. 311 ( 12 S.E.2d 641); Tennessee, Alabama Georgia Railway Co. v. Zugar, 193 Ga. 386 ( 18 S.E.2d 758); Taylor v. Hammack, 61 Ga. App. 640 ( 7 S.E.2d 200); DeBardelaben v. Coleman, 74 Ga. App. 261 ( 39 S.E.2d 589). For the reasons stated in divisions 1, 3, and 5, and in this division of the opinion, the court erred in overruling the motion for new trial.
The burden was on defendant Young to show that his trespass was innocent. Taylor v. Hammack, 61 Ga. App. 640 (2), 641 ( 7 S.E.2d 200) (1940). See also Coleman v. Garrison, 80 Ga. App. 328, 334 (5) ( 56 S.E.2d 144) (1949); Cooper v. Brock, 77 Ga. App. 152, 155 ( 48 S.E.2d 156) (1948).
The plaintiff is not required to allege whether the trespass was wilful or not; and if he alleges that it was wilful and it develops that it was inadvertent or in good faith, he can nevertheless recover, though in a lesser amount. OCGA § 51-12-50 (2); Taylor v. Hammack, 61 Ga. App. 640 ( 7 S.E.2d 200) (1940). The burden of showing good faith, once the taking has been established, is the defendant's — here, the appellants'.
If the recovery is for the full value of the timber cut under OCGA § 51-12-50, there can be no additional recovery of punitive damages. Taylor v. Hammack, 61 Ga. App. 640 ( 7 S.E.2d 200) (1940). "In an action for damages for the cutting and carrying away of timber, in which the plaintiff alleged the cutting was wilful, the measure of damages is the full value of the property at the time and place of demand or suit. . . . Such an action on its face is one for the full value of the property and the good faith and innocence of the defendant is a matter of defense whether or not the plaintiff alleges wilfulness. [Cit.
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.
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 Taylor v. Hammack, 61 Ga. App. 640, 641 ( 7 S.E.2d 200), this court ruled that "the plaintiff is not required to allege that the trespass in cutting and removing timber was wilful or innocent. If he alleges a wilful trespass, his suit does not fail if it develops that the trespass was inadvertent or in good faith, though this fact may give the defendant the right of set-off. Where a trespass and removal of timber are shown, and a suit is instituted for the full manufactured value of the lumber, the burden is on the defendant, where a taking is shown, and a suit is instituted for the full manufactured value of the lumber, the burden is on the defendant, where a taking is shown, to establish that the taking was unintentional or in good faith, and also the value that has been added to the property by the expenditure of labor and money on it. Unless this be shown, the plaintiff whose property has been converted is entitled to the full value of the property in its manufactured state.
In such an action the plaintiff is not entitled to recover punitive damages as are provided for in the Code, § 105-2002. Taylor v. Hammack, 61 Ga. App. 640 ( 7 S.E.2d 200); McConnell Bros. v. Slappey, 134 Ga. 95 (8) ( 67 S.E. 440); Tennessee, Alabama c. Ry. Co. v. Zugar, 193 Ga. 386 ( 18 S.E.2d 758). It follows that a plaintiff may not circumvent the law just stated by merely proving value at the time of conversion and seeking punitive damages under the Code, § 105-2002, in addition. As stated in the cases cited the Code, § 105-2013, fixes a special measure of damages in such actions for wilful misconduct, which is exclusive and not inconsistent with § 105-2002.
It distinguished the cases relied upon by appellants by pointing out that they involved the conversion of timber with respect to which the Georgia Code provides a specific measure of damages applying to wilful trespassers as differentiated from innocent trespassers. E.g., Taylor v. Hammack, 1940, 61 Ga. App. 640, 7 S.E.2d 200; Tennessee, Alabama Georgia R. Co. v. Zugar, 1942, 193 Ga. 386, 18 S.E.2d 758; and DeBardelaben v. Coleman, 1946, 74 Ga. App. 261, 38 S.E.2d 589. Title 105-§ 2013. "Measure of damages for timber cut. — Where plaintiff recovers for timber cut and carried away, the measure of damages is: