Clarence J. Hathaway v. Mitchell Goslant
| Decision Date | 26 January 1905 |
| Citation | 59 A. 835,77 Vt. 199 |
| Parties | CLARENCE J. HATHAWAY v. MITCHELL GOSLANT |
| Court | Vermont Supreme Court |
October Term, 1904.
TRESPASS for cutting and drawing away trees from plaintiff's land. Plea, the general issue. Trial by jury at the September Term, 1903, Washington County, Haselton, J presiding. Verdict and judgment for the plaintiff. The defendant excepted.
Judgment affirmed.
J P. Lamson for the defendant.
Present: ROWELL, C. J., TYLER, MUNSON, START, WATSON, and POWERS, JJ.
The action is for cutting and drawing away trees from the plaintiff's land. The original declaration is for treble damages. Before the trial, the plaintiff filed a new count in trespass for cutting and taking away the trees. At the commencement of the trial the defendant requested the court to direct the plaintiff to elect whether he would go to trial upon the original or upon the new count. The court, in overruling the motion, said that, at the close of the evidence, the motion could be renewed. To this ruling the defendant excepted. At the close of the evidence, the defendant renewed his motion; and the court held that the plaintiff could not go to the jury upon both counts, and directed him to elect whether he would go to the jury upon the amended or original count. Both counts are for the same acts of the defendant, and it is clear that the delay of the court in directing the plaintiff to elect could not have been prejudicial to the defendant.
After verdict for the plaintiff, the defendant moved that the costs be restricted to the time of the filing of the new count. The original declaration declared in trespass for treble damages, and the new count is the same, except that it does not declare for treble damages. In so far as appears, no objection was made to the filing of this count, and no terms were claimed or imposed for so doing. Both counts are for the same acts of the defendant; and, while the original declaration declared for treble damages, the issue upon which the right of action depended was no different from that made by the new count. Davis v. Cotey, 70 Vt. 120, 39 A. 628. By omitting to declare for treble damages in the new count, recovery upon that count was limited to single damages; but this limitation upon the right of recovery under that count did not, as a matter of legal right, entitle the defendant to terms, or to a restriction of the plaintiff's costs. The statute giving treble damages for cutting trees does not create the right of action, but only gives cumulative damages for what was and still is actionable at common law. Montgomery v. Edwards, 45 Vt. 75. The original and new counts being for the same acts, it cannot be said that the defendant prevailed upon any issue; therefore, he was not entitled to costs under V. S. 1693.
The defendant called upon the plaintiff for the purpose of fixing the amount of damages, but the plaintiff refused to talk about a settlement and referred the defendant to his counsel. The plaintiff was allowed to testify, subject to the defendant's exception, that, on this occasion, the defendant said to him, "That he had generally found in such cases a man willing to do something, and if I was a gentleman he thought I would." There is nothing in the remark excepted to that in any way reflects upon the defendant, nor does it contain an admission of a liability on his part. The defendant did not except to the admission of the testimony tending to show that he called upon the plaintiff and wanted to fix upon the amount of the damage, but to the admission of testimony showing his comments upon the plaintiff's conduct in refusing to talk with him upon the subject. We think there was nothing in these comments that could prejudice the defendant; that, if there was error in admitting the testimony, the defendant has no reason to complain; and that the error was harmless.
The plaintiff was allowed, subject to the defendant's exception, to testify in regard to the prospective growth of the trees in question, and in view of such growth, as to their value upon the stump. The defendant now insists that the case does not show that the witness had ever had any experience or had made any observations respecting such trees. It is a sufficient answer to this objection to say that the official transcript of the testimony given by the witness upon this subject is referred to and made a part of the bill of exceptions, and that the defendant has not furnished us with this transcript; and we cannot say that the witness was not qualified to testify as an expert upon this subject, nor that the court did not so find. The defendant also insists that the question asked this witness was leading and should have been excluded for this reason; but it does not appear that he objected to the question on this ground, nor does it appear that the court did not allow the question to be answered as a matter of discretion. Unless it appears that the court below ruled, as a matter of law, that the question was not leading, its ruling is not revisable in this Court.
One Lamberton was called by the plaintiff and testified as to the cost of cutting, hauling, sawing and placing upon the cars at Marshfield the lumber on the land in dispute, and on cross-examination, was asked whether the hard wood lumber in question was such as he would send to market in boards, or whether it was only fit for chair stock. The court excluded the question and the defendant excepted. The question was properly excluded. The witness did not testify as to the quality or value of this or any other lumber; therefore, the inquiry was not proper cross-examination. Also, it does not appear that the witness saw this lumber or knew anything about its quality. This witness also testified that hard wood drawn to the mill in the winter would be stuck up after sledding broke up, toward spring, and there remain until August or September; and, on cross-examination by the defendant, he was asked the following question: "Now is there a risk during that summer to run of fire?" This question was also properly excluded. As before stated, the witness was not examined by the plaintiff respecting the value of this or any other lumber on the stump or in the market; and the inquiry was not proper cross-examination. The plaintiff claimed, and his evidence tended to show, that he was keeping the trees in question to have them grow and finally to cut them into building lumber and build some houses, and that some eight or nine years ago he got some twenty thousand feet of lumber into Lamberton's mill. The defendant offered to show that this lumber was still in the mill yard, and also offered to show its condition as to soundness, and that it was got out for building purposes. This evidence was properly excluded. The question as to what became of the lumber was immaterial, and was not relevant to any issue in the case.
The evidence tended to show that some of the plaintiff's men told one Lamberton not to tell the defendant's men that they were cutting on the defendant's land; and the defendant offered to show their reason for so doing, but did not accompany his offer with a statement of what their reason was. It does not appear but that this evidence was introduced by the defendant, nor that the witness by whom he sought to show the reason was not called by him. If the witness was produced by the defendant, it was the defendant's duty to state in his offer what the witness would testify to. It not appearing what testimony the witness would have given if he had been allowed to answer, we cannot say that there was error in excluding the offer, nor that its exclusion was in any way prejudicial to the defendant; therefore, error does not appear.
The defendant's evidence tended to show that the ash tree, which was in question, was sawed into boards and used by one Jewett in banking his house; and the defendant offered to show, by himself, that he did let Jewett have some ash boards to bank his house. The offer was excluded. In this there was no error. The defendant did not offer to show, by himself, that the boards he let Jewett have were sawed from the tree in question, nor did he offer to show that he let Jewett have the boards after the tree was cut and before a controversy had arisen respecting it. Without such showing, the offered evidence would not render his claim respecting the value of the tree more probable.
The plaintiff was allowed, subject to the defendant's objection and exception, to show the cost of cutting, hauling, sawing and shipping to Boston lumber from the land in question; also what certain kinds of lumber sold for in Boston. The official transcript of the evidence is referred to and made a part of the bill of exceptions, in so far as it bears upon the admissibility of this evidence, and it has not been furnished. Without a transcript of this evidence, we cannot say that its admission was error. It may have been so connected with other evidence that it was admissible. When a transcript of the evidence is referred to and made a part of the bill of exceptions, for the purpose of determining the admissibility of evidence, and is not furnished, we do not have all there is of the bill of exceptions before us.
One Goslant was called and used as a witness by the defendant and it appearing from the cross-examination that at some time a case was tried in which the defendant...
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