Dippold v. Cathlamet Timber Co.

• Decision Date: 22 April 1924
• Citation: 225 P. 202,111 Or. 199
• Parties: DIPPOLD ET AL. v. CATHLAMET TIMBER CO.
• Court: Oregon Supreme Court

225 P. 202

111 Or. 199

DIPPOLD ET AL. v. CATHLAMET TIMBER CO.

Supreme Court of Oregon

April 22, 1924

Department 1.

Appeal from Circuit Court, Multnomah County; Geo. W. Stapleton Judge.

Action by W. S. Dippold and J. H. Dippold, as partners, against the Cathlamet Timber Company, a corporation. Judgment for plaintiffs, and defendant appeals. Affirmed.

Platt & Platt, Montgomery & Fales, of Portland, for appellant.

John Van Zante, M. H. Carter, and A. H. Tanner, all of Portland for respondents.

BURNETT J.

The substance of the complaint in this action is that the plaintiffs had contracted to purchase from a third person the cedar timber on a tract of land in the state of Washington which was to be manufactured into shingles and paid for at the rate of 10 cents per 1000 shingles, with the right to enter upon the land and set up machinery thereon for the purpose of such manufacture; that they had established on the land their machinery, the same being portable personal property; had engaged in the manufacture of shingles; had felled a large number of trees; cut them into logs for the purpose of such manufacture, and, at the expense of about $1,000, had constructed a road for the purpose of hauling the shingles to market.

The plaintiffs charged that the defendant was engaged in logging operations about a mile west of the lands upon which they were manufacturing shingles; that near the camp of the defendant the latter, about April 30, 1918, caused a fire to be kindled which destroyed that camp and a large amount of brush and tree tops; and that afterwards, on or about May 10, a fire was started by sparks and cinders emitted by one of the defendant's donkey engines, which was not equipped with any spark arrester. It is said that these fires were allowed by defendant to burn and spread so that about July 1 they were communicated to and burned plaintiffs' shingle mill, boiler, and machinery, together with cedar logs sufficient to have manufactured at least 40,000,000 shingles. The plaintiffs aver that about June 15, 1918, they notified the defendant to extinguish the fires and that the defendant then and there promised to do so, upon which promise the plaintiffs relied; and that the defendant failed, willfully, carelessly, and negligently, to extinguish the fires. After setting out the terms of the contract for the timber, the complaint alleges:

"That plaintiffs could and would have realized from the manufacture of said timber into shingles a net profit of fifteen cents per thousand shingles, aggregating the sum of $6,000.00 and that by reason of the aforesaid carelessness and negligence of said defendant they were prevented from manufacturing said timber into shingles and from making said gain and profit thereon, and plaintiffs further allege that under the said contract with said Bertha E. Martin the price they had agreed to pay her for said timber was ten cents per thousand shingles and that said timber was worth in the market and had a market value at the time it was so burned the sum of twenty-five cents per thousand shingles and that by reason of the premises plaintiffs are and have been damaged by the burning and destruction of said timber so burned and destroyed by said fires as aforesaid in the sum of $6,000.00."

The answer traverses the complaint in almost every particular. Further answering, the defendant admits that in the spring of 1918 it started a fire for the purpose of burning slashings which had accumulated during its logging operations and that, after those slashings were burned, the fire was extinguished and that afterwards "the spring rains began and wiped out said fire and all evidence thereof." It is further said that, more than two months after the fire was extinguished, other fires developed from causes unknown to the defendant, near where it was engaged in logging; that it did everything it could to prevent its spreading and to extinguish the fire, but without success and that a high wind developed, causing a spread of the fires, ultimately destroying the timber and mill of the plaintiffs; and the defendant maintains that the fires were caused by an act of God or by other parties besides the defendant, and that in all matters the defendant complied with the laws of Washington. What these laws were at the time is not stated in the answer. The reply traversed the new matter in the answer.

The jury found a verdict in favor of the plaintiffs as follows:

"As compensation for the loss of the use of the road $______.

"As damages for the destruction of the down timber $2,250.00.

"As damages for the destruction of mill, machinery, boilers and temporary building $1,600.00."

From the ensuing judgment the defendant appeals.

There are two assignments of error predicated upon the trial court allowing the plaintiffs to introduce evidence of the value of the road and instructing the jury to consider the cost thereof as an element of damage. The error thus noted is harmless in view of the fact that the jury allowed nothing whatever for the value of the road. It is assigned as error that the court refused to strike out all evidence of profit that the plaintiffs might have made from their contract. This assignment is not apropos, as the effort of the plaintiff was not to recover profits, but to recover the value of the timber which had been cut down and was destroyed. Incidentally, the nature of the contract appeared in the evidence. The plaintiffs had been operating under their contract and had manufactured and shipped some of the shingles. The quality of the timber, the contract price thereon, and the present value of the timber were all proper elements to be introduced in the evidence, to inform the jury as to the nature and value of the property. In Aune v. Austin Williams Timber Co., 52 Wash. 356, 100 P. 746, cited by the defendant on another point, we find that the plaintiff there had contracted to cut poles on the defendant's land and to yard them to the latter's skid road, after which the defendant was to haul them to navigable water. A fire started by the defendant and carelessly managed by it destroyed the poles. It was objected there as here, that the plaintiff could not recover the value of the poles because the contract for their manufacture had not been completed; but the court said:

"The respondent had a certain value invested in these poles, and that value was destroyed by the negligence of the appellant. The respondent was not working for wages, nor was the appellant to pay him under their contract for the value of his wages. Therefore, he was entitled to his bargain under his contract."

Manifestly, having gone into possession of the property and done important and considerable acts in the performance thereof, the plaintiffs here had property there which has been destroyed. If the defendant had gone upon the land and carried away the logs, it is very plain that the plaintiffs could have maintained replevin for them and have secured the alternative judgment for the value of them in case a return of the property could not be had. Neither the evidence nor the pleading presents the recovery of speculative profits. It is a question of recovering damages for the destruction of valuable property.

It is likewise noted as error that the court refused to strike out all the evidence introduced by the plaintiff because it did not connect the defendant with the tort alleged in the complaint of instituting a fire on April 27 and another on May 10, and for the further reason that there was no direct evidence showing any connection between the fire alleged in the complaint and the fire proven upon the trial of the case. This objection goes, not to the quantum of the evidence, but maintains that there is no evidence connecting the defendant with the fires which destroyed the mill. There is the direct testimony of the plaintiff J. H. Dippold to the effect that the mill was burned by the fire coming from the defendant's property which was burning in June, that he interviewed the defendant's foreman about it on June 22 when the latter promised to take care of the fire, and that the same fire which he promised to care for was the one which destroyed the mill. This testimony alone would be sufficient to take the case to the jury as to whether the defendant was liable for the fire. The jury would have a right to conclude that, if it were not responsible for the burning, it would not agree to take care of the fire.

It is assigned also as error that the court refused to grant the defendant's motion for nonsuit, and it is said in support of that assignment that it appeared from the evidence of the plaintiffs that they did not use reasonable care to avoid the avoidable consequences of the fire which they knew was spreading to their land and that the plaintiffs were guilty of negligence in not aiding the defendant in trying to prevent the spread of said fire. The same question was raised by a motion to direct a verdict for the defendant. The standard of care on the part of the plaintiffs, wherever any...