Postal Telegraph Co. v. Brantley

HEAD, J. The deed offered in evidence by plaintiff to prove his ownership of the land on which the trees were cut was not admissible, taken, by itself, without proof of its execution. Though acknowledged by the grantors, it had nob been recorded within one year, and hence did not fall within the terms of the statute permitting such instruments to be received in evidence without further proof. — Code of 1886, § 1798. The bill of exceptions recites that the court below allowed the plaintiff to introduce the deed, against defendant’s objection, “to show color of title.” There would have been no error in this ruling if the plaintiff had offered other evidence along with the deed that the grantee therein, who was plaintiff’s mother, had actually held possession and claimed title under it. We so decided in Alabama State Land Co. v. Kyle, 99 Ala. 474. The deed is admissible under such circumstances, without proof of its execution, to show the boundaries of the possession claimed. It serves to demonstrate the limits and extent of the adverse possession. But without such supplementary proof of possession and claim under it, the deed itself should not have been received. There being no testimony whatever going to show the agency of the parties of whom plaintiff inquired what line it was, the reply of,one of them, that it was the “Postal Telegraph Company,” was not binding on the defendant, .even if the declaration had been otherwise competent. The court erred in allowing such declaration to be proven. — Postal Telegraph Cable Co. v. LeNoir, decided at present term ; (ante, page 640.) Section -2754 of the Code of 1886 expressly provides that the court .“shall not charge upon the effect of the-testimony-unlessrequired.to, do so by one of the parties.’” It was highly improper, therefore, and a gross invasion of the province of the jury for the court to tell them, in [687] its general charge, that the plaintiff was the owner of the land and that he had made out his title. That was one of the disputed questions of the case, and it was for the jury to say whether it had been proven to their reasonable satisfaction. A general charge on the effect of the evidence, unless given on request, is cause of reversal. — Crawford v. McLeod, 64 Ala. 240 ; Baker v. Rusversal, 41 Ala. 279. When a question of fact is involved, dependent on oral testimony, the credibility of the evidence must be referred to the jury, and a charge assuming the credibility of the testimony is erroneous, though it is clear and undisputed. — 1 Brick. Dig. 336, §8; 3 Brick. Dig. 110, § 55. For the same reason it was not within the province of the court to say to tin1 jury, “the plaintiff proves that he has had the land in adverse possession for twenty-four years.” Besides, even the jury would not have been justified in coming to any such conclusion, for theplaintiff did not claim to have had the land in Ms possession for more than fourteen years. There were other similar errors in the court’s general charge to the jury, but it would probably serve no useful purpose to point them out in detail. It is not likely that they will be repeated on another trial. If there was any evidence, or a want of it, to justify the various written charges requested by the defendant, except those presently to be stated, it is not disclosed by the record. They were abstract and were, therefore, properly refused. There was an entire lack of evidence, however, connecting the defendant with the cutting of the trees, and it is not shown that they were cut before the bringing of the suit. Hence the general charge should have been given, as requested by defendant, and also the charge reading as follows: “Before the jury could (can) find'for the plaintiff they must be satisfied from the evidence that the trees and saplings alleged to have been cut were cut before the commencement of this suit.” ....... ■ .......• .- ■ ...... • Some of the written chai'ges requested by the defendant assert in substance, that if the trees'were'cut by defendant’s agents or servants in disobedience of- instructions given them, not to cut any trees on the land.of any person without his consent, the defendant would not be liable. As the proposition is insisted on here by appel [688] lanfc’s counsel and as the same question may be raised on another trial, we deem it proper to say that, whatever may have been their instructions, if defendant’s servants did the acts complained of, in the course and within the scope of their employment, defendant would be responsible therefor. The rule is now well settled that the master is liable for the malicious and tortious acts of his servants, done in the scope and within the course of his employment, even though the master did not authorize or ratify them and even though they were in express disobedience of the master’s orders. — Gilliam v. S. & N. Ala. R. R. Co. 70 Ala. 268 ; L. & N. R. R. Co. v. Whitman, 79 Ala. 328; Ala. Great Southern R. R. Co. v. Frazier, 93 Ala. 45, s. c. 30 Am. St. Rep. 28; K. C. M. & B. R. R. Co. v. Higdon, 94 Ala. 290; 14 Am. & Eng. Ency. of Law, 815; Ritchie v. Waller, 27 L. R. A. 161 and note. It follows, therefore, that if the trees in question were cut down by defendant’s servants or agents to make a way for the telegraph line, which they were engaged in constructing for the defendant, then defendant would be liable, if the other conditions necessary to support the action were found to exist. See Postal Telegraph Cable Co. v. LeNoir, supra. It is not necessary to notice the other exceptions reserved as what we have already said will probably‘be a sufficient guide for another trial. For the errors pointed out, the judgment is reversed and the cause remanded.