Freeman v. Kelley

Court of Civil Appeals of Alabama

Freeman v. Kelley

395 So. 2d 1019, 1981 Ala. Civ. App. LEXIS 1109

CourtCourt of Civil Appeals of Alabama

DecidedMarch 4, 1981

DocketCiv. 2452

StatusPublished

This text of 395 So. 2d 1019 (Freeman v. Kelley) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Freeman v. Kelley, 395 So. 2d 1019, 1981 Ala. Civ. App. LEXIS 1109 (Ala. Ct. App. 1981).

Pincite

Opinion

HOLMES, Judge.

The plaintiff sued defendants for negligently allowing a tree to fall on plaintiff’s house. The trial court, sitting without a jury, entered a judgment of $7,500 against the defendant who cut the tree down. The trial court found in favor of defendant-landowner.

The plaintiff appeals, contending the trial court erred in failing to enter judgment against defendant-landowner. We affirm.

The record in pertinent part reveals:

The plaintiff and defendant-landowner own adjoining property. The defendant-landowner allowed defendant-Edwards to come on defendant-landowner’s property to cut timber. Defendant-Edwards paid defendant-landowner approximately $350 for this privilege. While on the property defendant-Edwards cut a tree which fell on the plaintiff’s home causing damage.

The trial court, after an ore tenus hearing, apparently found the defendant-Edwards to be an independent contractor and no negligence on the part of the defendant-landowner. These apparent findings resulted in a judgment in favor of defendant-landowner.

[1020]*1020We do not deem it necessary nor prudent to set out in detail the evidence. Suffice it to say it is not a paragon of clarity as to precisely what occurred. There is evidence to support a conclusion that defendant-landowner’s action did not constitute negligence.

Where the evidence is heard orally before the trial court, such as we have in this instance, the finding of the court has the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. See, First Southern Federal Savings & Loan Ass'n of Mobile v. Nicrosi, Ala., 333 So.2d 780 (1976); 2A Ala. Digest, Appeal & Error Key 1008.1(2).

In the instant appeal we find the judgment of the trial court not to be plainly erroneous or manifestly unjust.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.

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