C. Crane & Co. v. Fry

• Decision Date: 05 November 1903
• Docket Number: 488.
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: C. CRANE & CO. v. FRY.

126 F. 278

C. CRANE & CO. v. FRY.

No. 488.

United States Court of Appeals, Fourth Circuit.

November 5, 1903

John H Holt, W. R. Thompson (C. W. Campbell, on the brief), for plaintiff in error.

Geo. J McComas, for defendant in error.

Before GOFF and SIMONTON, Circuit Judges, and MORRIS, District Judge.

MORRIS District Judge.

This was an action at law brought by Chapman Fry, a citizen of West Virginia, against C. Crane & Co., a corporation of Indiana, to recover for the loss of 30,000 railroad ties belonging to the plaintiff, which, by the alleged fault of the defendant, were swept out of a boom, as alleged, being leased to or operated by the defendant. The defendant pleaded the general issue, and the verdict being for the plaintiff the case is now here on exceptions by the defendant to certain rulings of the court.

The plaintiff offered evidence tending to prove that the plaintiff, who before that time had gotten timber on Twelve Pole river, in Wayne county, using this boom, had requested a certain Fletcher Garrett, who had been at one time an employee of the defendant, and who was at that time getting out timber on Twelve Pole river and using the boom, to see Mr. Crane when he went to Cincinnati, and find out what they would charge to boom his ties. The reply by Mr. Crane to Mr Garrett was that the charge for booming the plaintiff's ties would be 1 1/2 cents for each tie, and thereupon and upon that understanding the plaintiff put his ties into the creek, and they were floated into the boom.

The first question which arose was, with whom was the contract made? The plaintiff contended that he knew no one except the defendant corporation, C. Crane & Co., of which C. Crane was the general manager, and through whom, as the manager of the defendant corporation, he had done business in connection with the lumbering on the Twelve Pole river for several years. On the other hand, the defendant contended that, in making the contract with the plaintiff, Mr. Crane was acting as the president and general manager of the Twelve Pole Land, Lumber and Boom Company, a corporation which had originally constructed the boom, and the stock in which was owned by the same persons who were the stockholders in the corporation of C. Crane & Co. To support the plaintiff's contention, he offered testimony that C. Crane & Co. operated the boom as if it was its own; that it had paid the superintendent and laborers, collected the dues for booming in its own name-- and gave in evidence other circumstances tending to show control of the boom business by the defendant, and dealing with it as an absolute owner would. To support the defendant's contention that C. Crane & Co. did not carry on the boom business as its own, the defendant offered to prove that certain payments which the plaintiff and his witnesses had testified were made to C. Crane & Co. for charges in booming were by C.

Crane & Co. credited to an account of the Twelve Pole Land, Lumber and Boom Company in the defendant's books.

The questions propounded to the defendant's witness asked him to state what became of certain sums which the plaintiff had testified he had paid to C. Crane & Co. for booming his ties, and to state if C. Crane & Co. had accounted to the Twelve Pole Land, Lumber & Boom Company for those several amounts. To these questions the plaintiff objected, and the court sustained his objection, and these rulings constitute the fifth, sixth, and seventh assignments of error.

There was proof tending to show that C. Crane was the treasurer and general manager of C. Crane & Co., the defendant corporation, and was also the president and manager of the Twelve Pole Land, Lumber & Boom Company, which had constructed the boom in question. He could, therefore, have contracted with the plaintiff in either capacity. No definite statement was made by either party to the contract at the time it was made as to who was the party contracting with the plaintiff, but many circumstances were detailed in testimony consistent with the contention that the defendant, C. Crane & Co., received and paid out all the money received on account of, and for the use of, the Twelve Pole Land, Lumber and Boom Company. The weight of the testimony would have been for the jury, but we are of opinion that it was testimony pertinent to the issue, and was admissible. When the general manager of C. Crane & Co. named the rate for booming the plaintiff's ties, nothing was actually said inconsistent with defendant's contention that he was then acting for the boom company. The jury were asked by the plaintiff to find that Crane was acting for C. Crane & Co., and to find from its acts that C. Crane & Co. was operating the boom, or held itself out as so doing, and, among other acts, the fact that C. Crane & Co. used the boom for its own timber, and collected toll from others whom it permitted to use it. If the defendant could show that it did really pay over and account to the boom company for the tolls collected for booming, it would be a pertinent circumstance tending to prove the defendant's contention. If the defendant took toll for itself from those using the boom, it could not disclaim operating the boom; but it if took the toll not for itself but for the use of the boom company, it should be allowed to prove it. We think the rejection of the defendant's offer of this testimony was error.

The second, third, and fourth assignments of error relate to the refusal of the court to allow the defendant to ask a witness familiar with the working of booms in West Virginia whether or not it was practicable to open the boom and release the plaintiff's ties without at the same time taking out the other timbers in the boom, and the further question whether the operator of a boom under a contract to boom ties is obliged to open the boom, at the instance of an owner of a part of the lumber in the boom, until the owners of the other lumber in the boom have had a reasonable opportunity to prepare to take care of their lumber as it is turned adrift at the opening. The ground of the plaintiff's action was that, at a time when the backwater from the Ohio river afforded a suitable opportunity to open the boom and release his ties, the defendant, through its boommaster in charge, refused the plaintiff's request to open the boom upon the ground that the other owners of logs, including the defendant itself, had not been able to procure the necessary chain dogs for rafting their logs, and therefore the boom could not be opened without causing the other owners to lose their timber by its floating off into the Ohio river. Those who operate a boom are bailees for hire, and in handling of the logs they have in charge, and in maintaining the boom, are held to an ordinary degree of care; that is to say, that degree of care which an ordinarily prudent man would in that business exercise in respect to his own property. 4 Am. & Eng.Ency. of Law, p. 717, tit. 'Boom Companies.' The operators of a boom are not insurers, nor have they the duties of a common carrier, but their obligations are similar to those of warehousemen, wharfingers and bailees of like character. The plaintiff's allegation was that his losses occurred because of the neglect of the defendant to properly construct, maintain, and handle the boom, and to deliver his logs to him on his demand. The defendant's defense on the merits was that it had not failed in any duty, and had done all that was practicable. The proper conduct of a boom, and what is practicable to be done, and what not, is a matter of expert knowledge, proper to be explained to the jury by competent testimony; and we are of opinion that it was error to refuse to allow the defendant to introduce this expert testimony since it was pertinent to the question whether the defendant had failed in its duty or not.

The eighth assignment of error is to the granting of the motion of the plaintiff to strike out so much of its testimony of the witness Williams as gave his own practice in operating the boom. We think the witness, if he was competent to speak of the general usage in operating booms, might have been allowed to testify to the general usage; but the ruling was right as to the testimony stricken out, because it was only as to the witness' own individual practice.

The eighth and ninth assignments of error are to the refusal of the court to grant instructions Nos. 2 and 3 offered by the defendant. They were as follows:

'(2) The jury are instructed that the plaintiff cannot recover upon the first special count in the declaration without proof that the defendant was the owner of the boom and the boom privileges therein mentioned, and, as such owner, was operating said boom and exercising said boom privileges at the time alleged in said count; and, inasmuch as there is no evidence tending in any appreciable degree to prove such ownership of said boom and boom privileges by the defendant, the jury are instructed to disregard said special count in said declaration.'

Instruction No. 3 asked by the defendant and refused by the court was as follows:

'(3) The jury are instructed that no recovery can be had upon the only remaining count in the declaration by the plaintiff without proof by a preponderance of evidence that, at the times of the alleged breaches of the contract herein described, the said defendant was operating the said boom and exercising said boom privileges as lessee thereof from the Twelve Pole Land, Lumber & Boom Company. Proof that the defendant received the tolls for booming ties of the plaintiff is not sufficient proof that the defendant was such lessee of said boom and boom privileges.'

The instructions objected to by the defendant, given by the court, of its own motion, in lieu of the...