Bill v. Gattavara

• Citation: 24 Wn.2d 819,167 P.2d 434
• Decision Date: 28 March 1946
• Docket Number: 29788.
• Parties: BILL et ux. v. GATTAVARA et al.
• Court: United States State Supreme Court of Washington

167 P.2d 434

24 Wn.2d 819

BILL et ux. v. GATTAVARA et al.

No. 29788.

Supreme Court of Washington

March 28, 1946

Department 2

Action by Nick Bill and Anaci Bill, his wife, against Victor Gattavara and Columbia Gattavara, his wife, Lee Garner and Olive Garner, his wife, and others based upon the alleged unlawful cutting and removal of timber from plaintiff's land by defendants. From judgment for plaintiff, the named defendants appeal.

Reversed as to the named defendants and cause remanded with directions.

BLAKE J., dissenting.

Appeal from Superior Court, King County; James W Hodson, judge.

Arthur E. Griffin, of Seattle, for appellants.

Arthur H. Hutchinson, of Seattle, for respondents.

JEFFERS Justice.

On November 27, 1943, Nick Bill and wife commenced an action in the superior court for King county against Lee Garner and wife, and Jim Hailstone and wife. The action, as shown by the complaint, was based upon the claimed unlawful cutting and removal of timber from plaintiff's land by defendants. On January 2, 1945, Nick Bill and wife filed and served an amended complaint, naming as defendants Victor Gattavara and wife, Lee Garner and wife, and Jim Hailstone and wife.

The basis of the cause of action stated in the amended complaint is found in paragraphs 4 and 6, the former reading as follows:

'That within three years last past Victor Gattavara, Lee Garner and Jim Hailstone entered into a joint venture for the purpose of conducting logging operations, building roads, cutting, sawing and felling timber and trees, trucking logs and selling the same to the mills, and dividing between themselves in proportions agreed between themselves the moneys and revenues received from the sales of the said logs, piling, or other products of said operations. That the form of this agreement, whether oral or in writing, and its exact terms are unknown to the plaintiffs but are known to the defendants. However, all of the said defendants did operate under the said agreement as a joint venture and the moneys received as gross income from the operations were divided among the defendants, each collecting his agreed share of the proceeds.' (Italics ours)

Paragraph 6 alleges in substance that defendants trespassed upon plaintiffs' land, cut and removed large first and second growth trees, as well as small growths fit for piling, polies, ties, etc., and destroyed small trees and seedlings by driving trucks and tractors and logging equipment over plaintiffs' land, all of which damaged plaintiffs in the sum of seven thousand dollars.

Plaintiffs ask for treble damages under Rem.Rev.Stat. § 939.

While all the defendants were apparently served with the amended complaint, only defendants Victor Gattavara and wife and Lee Garner and wife appeared in the action. The Hailstones defaulted.

Defendants Gattavara and wife and Garner and wife appeared, and by their answer denied each and every allegation contained in paragraphs 4, 5, 6, 7 and 8 of the amended complaint.

The cause came on for hearing Before the court on June 26, 1945, and thereafter, on July 19, 1945, the court made and entered its findings of fact, conclusions of law and judgment.

In view of the fact that error is assigned upon all of the findings of fact made by the trial court, except the first three, it will be necessary to set out so much of the findings as may be necessary to an understanding of the questions raised.

Findings of fact Nos. 1, 2 and 3 merely relate to the marriages of plaintiffs and defendants, and to plaintiffs' ownership of the northwest quarter of section 8, township 23, north of range 6 E. W. M., the land from which it is claimed the timber was taken.

Finding No. 4: 'That for two years, to-wit, 1942 and 1943, within the last three years, Victor Gattavara, Lee Garner and Jim Hailstone trespassed upon the plaintiff's land without right and wrongfully, and conducted logging operations thereon building roads, cutting, sawing and falling plaintiff's growing trees; selling the same as merchantable logs to the mills for the price of $17.00 per thousand feet.'

Finding No. 5 consists of about five pages, and contains conclusions of the trial court and the court's observations relative to certain witnesses and their testimony. We shall set out only so much of finding No. 5 as we believe material to the issues and the questions to be determined. The court found that Victor Gattavara employed Lee Garner to do the logging at the price of $15.05 per thousand feet of logs delivered at the mill, and that Lee Garner employed on Martin Schroeder to do the actual logging and delivery to the mill for the sum of nine dollars per thousand feet; that Martin Schroeder in turn transferred the job to Jim Hailstone and his son Don Hailstone, and John Schroeder, with the consent and confirmation of Lee Garner; that they were instructed by Lee Garner to log the entire top of Mine Hill, which included plaintiff's property, from the end of a logging road constructed by Lee Garner through Gattavara's lands; that Jim Hailstone, Don Hailstone and John Schroeder operated on plaintiffs' lands around spar poles for five hundred feet radius, selected and marked for their guidance; that defendants Gattavara and Lee Garner had the general right of control over the overall logging operations of Jim Hailstone, Don Hailstone and John Schroeder, and whether or not they exercised that right, it was their duty to do so, and any damage and wrongs to third parties caused by themselves or their employees and agents were the responsibility of Gattavara and Garner.

The court further found that Victor Gattavara and Lee Garner ordered deliveries of the logs to the sawmill of their own selection, to-wit, Issaquah Lumber Company; that Lee Garner collected the sum of $15.05 per thousand feet for logs delivered to Issaquah Lumber Company by Jim Hailstone, Don Hailstone and John Schroeder each Saturday, and out of this $15.05, paid to them for their wages $9 per thousand feet, and kept $6.05 for himself; that Victor Gattavara collected $1.95 per thousand feet, and also took directly from the mill to his home the original shipping receipts showing the amount of logs delivered to the mill, the dates thereof, and the payments and disbursements of the money made by the mill.

The court found that Lee Garner was at the time stated an employee of Victor Gattavara, who was his employer, and that Lee Garner was acting within the scope of his employment for the benefit and profit of his employer and principal, Victor Gattavara; that Lee Garner was at the times stated an employee of Victor Gattavara, who was his employer, and Martin Schroeder, Jim Hailstone, Don Hailstone and John Schroeder were employees of Victor Gattavara and Lee Garner.

The court further found that defendants, collectively and individually, are guilty of cutting 702,000 feet of standing trees, the stumpage of which was valued at $3.50 per thousand, or a total of $2,457, trespassing over an area of from eighteen to twenty-five acres; that such trespass and logging were willful, deliberate and intentional, and plaintiffs are entitled to triple damages, or a total of $7,371, against each and all of defendants.

The trial court concluded that plaintiffs were entitled to judgment against defendants and each of them in the sum of $7,371, together with costs.

The judgment entered was that plaintiffs recover of and from defendants the sum of $7,371, with interest and costs.

Defendants Gattavara and wife and Lee Garner and wife have appealed from the judgment entered.

Error is assigned on the denial of appellants' motion for a nonsuit at the close of respondents' case; in permitting respondents to introduce evidence of other suits having been brought against Gattavara; in making and signing findings of fact Nos. 4 and 5, such findings not being supported by the evidence.

Assignment of error No. 3 states:

'The court having properly made a definite finding of fact at appellants' request that no evidence was given of a joint venture, there was a fatal lack of evidence. The undisputed evidence that no trespass had occurred by any of appellants or by agent for anyone of them, judgment against them was error.'

We shall first discuss assignment of error No. 3.

There can be no doubt but that the amended complaint alleged that Gattavara, Garner and Hailstone entered into a joint venture for the purpose of conducting the operations which respondents claim resulted in unlawfully cutting and removing timber from respondents' land. Neither can there be any doubt that the trial proceeded upon the theory that appellants were joint adventurers.

On page 10 of the statement of facts the following appears at the time Mr. Hutchinson, attorney for respondents, was attempting to introduce exhibit No. 2:

'Mr. Griffin [Counsel for Gattavara and Garner]: If the only purpose is to show a joint venture and that this logging was done under a joint venture and whatever it shows as to the disposition of money.'

Then followed a suggestion by the court, after which Mr. Griffin again stated:

'Mr. Griffin: It may be understood this is introduced for the purpose of showing joint venture between Garner, Gattavara and Hailstone?

'Mr. Hutchinson: Yes.'

Again on page 12 of the statement of facts appears the following at the time Mr. Hutchinson was offering exhibit No. 3:

'Mr. Hutchinson: At this time I would like to introduce plaintiff's exhibit No. 3.

'Mr. Griffin: For what purpose? 'Mr. Hutchinson: For the same purpose as designated Before , the purpose not so much based on figures but showing joint venture between Gattavara and Garner.

'Mr Griffin: You are relying in this suit on a joint venture between Gattavara, Hailstone and...