Blodgett v. Park

• Decision Date: 04 June 1912
• Citation: 84 A. 42,76 N.H. 435
• Parties: BLODGETT v. PARK.
• Court: New Hampshire Supreme Court

84 A. 42

76 N.H. 435

BLODGETT

v. PARK.

Supreme Court of New Hampshire. Belknap.

June 4, 1912.

Transferred from Superior Court, Belknap County; Plummer, Judge.

Debt by Frank E. Blodgett against William R. Park. Verdict was for plaintiff, and case was transferred from the superior court on defendant's exceptions. Exceptions sustained in part, and overruled in part, and case discharged.

Debt to recover the forfeiture given by section 1, c. 244, Public Statutes, for the willful removal of timber trees. Trial by jury and verdict for the plaintiff. Transferred from the superior court on the defendant's exceptions to a statement by the plaintiff's counsel that "it costs money to prepare and try a case such as we have been trying here for the past week," to the admission of certain evidence, to the allowance of interest on the forfeiture from the time the trees were cut to the time of the trial, and to the exclusion of the affidavits of jurors and others offered for the purpose of impeaching the verdict.

Albin & Sawyer, of Concord, and Owen & Veazey and Stephen S. Jewett, all of Laconia, for plaintiff.

Foster & Lake and Martin & Howe, all of Concord, for defendant.

YOUNG, J. It is common knowledge that litigation is expensive to the parties and to the public—so expensive, in fact, that the court is accustomed to advise jurors that they should agree, if possible, and stop the expense by ending the litigation. Ahearn v. Mann, 60 N. H. 472. It was competent, therefore, for the plaintiff's counsel to urge the jurors to agree on a verdict for that reason; and, from all that appears, that was what he was doing when he made the remark excepted to. In other words, there is nothing to show that he made it, as the defendant contends, to induce the jury to give large damages.

The same question of law is raised by the defendant's first and second exceptions to evidence, and for that reason one only will be considered. A witness who was unfamiliar with the plan in use at the trial testified that he pointed out the place where he met the defendant's surveyor to one L., and L. was permitted to indicate the place on the plan. The question whether L.'s testimony offends against the hearsay rule depends on the purpose for which it was admitted. If it was to prove that the witness met the surveyor at that place, because he told that he did, it was hearsay; but, if it was introduced merely to enable the jury to understand where the witness testified he met the surveyor, it was not hearsay. In other words, it was not hearsay if it was introduced to enable the jury to understand and apply the witness' testimony; and the mere fact that it could be used for an illegal purpose did not render it inadmissible as a matter of law.

The testimony of Lane that the surveyor was familiar with the line, and that the bounds between which he ran the line were well-known monuments, tended to contradict the defendant's testimony that the surveyor "could not seem to find" the line, and was properly admitted for that purpose.

The statute which gives this action purports to limit the amount of the recovery; consequently the test to determine whether the plaintiff is entitled to interest from the time the trees were cut until the verdict is to inquire whether the Legislature intended him to have it. This section provides, in substance, that if the trespass is willful the trespasser "shall forfeit to the person injured, for every * * * tree so cut, * * * five times the value thereof." P. S. c. 244, § 1. If this language is given its ordinary meaning, the forfeiture does not bear interest until after the verdict; for the Legislature says that the injured person may recover five times the value of the trees so cut, and not five times their value, with interest from the time they are cut. If it had intended to give him interest as well as five times the value of the trees, it is probable it would have used apt words to express its intention; and, as it failed to use them, it must be held that the injured person is not entitled to interest. Although this is a new question in this jurisdiction, it has been considered by the courts of several states in construing similar statutes, and all, or all but one, of the courts which have considered it, hold that the injured person is not entitled to interest. Blair v. Railroad, 109 Iowa, 369, 80...