Feather River Lumber Co. v. United States

• Decision Date: 04 February 1929
• Docket Number: No. 5519.,5519.
• Citation: 30 F.2d 642
• Parties: FEATHER RIVER LUMBER CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

30 F.2d 642 (1929)

FEATHER RIVER LUMBER CO. v. UNITED STATES.

No. 5519.

Circuit Court of Appeals, Ninth Circuit.

February 4, 1929.

L. H. Hughes, of Quincy, Cal., and C. E. McLaughlin and McLaughlin & McLaughlin, all of Sacramento, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., of San Francisco, Cal., and Albert E. Sheets, Asst. U. S. Atty., of Sacramento, Cal. (H. P. Dechant, Asst. Sol., Department of Agriculture, of San Francisco, Cal., of counsel), for the United States.

Before GILBERT and DIETRICH, Circuit Judges, and NORCROSS, District Judge.

GILBERT, Circuit Judge.

The United States brought an action alleging that the defendant carelessly and negligently set and caused to be set a certain fire, which fire it carelessly and negligently allowed to spread upon certain described public lands, to the damage of the plaintiff in the sum of $187,275.58 and the cost of extinguishing the fire, amounting to $2,053.51. The defendant answered placing at issue the material allegation of the complaint. A jury trial having been waived by the written agreement of the parties, the case was tried to the court. At the conclusion of the testimony both parties asked for special findings, but none were made. The court, having found for the plaintiff, caused a judgment to be entered against the defendant for damages in the sum of $41,575.80 and the costs of the action.

The defendant assigns as error the denial of its motion for dismissal and nonsuit at the close of the government's case, made on the ground that the evidence adduced was insufficient to sustain a finding in favor of the plaintiff. The denial of that motion cannot avail the defendant as ground for reversing the judgment. After it was denied the defendant proceeded to introduce its testimony, and at the close of the trial it made no motion for judgment on the ground of the insufficiency of the evidence to sustain the complaint. The rule that under the circumstances here presented the evidence cannot be reviewed by an appellate court has been so frequently applied by this and other courts as to render unnecessary a review of the authorities. Deupree v. United States (C. C. A.) 2 F.(2d) 44, 45; Clark v. United States (C. C. A.) 245 F. 112; Fleischmann Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. A general finding having been made by the court below, the review in this court is limited to the rulings of the trial court in the progress of the trial. Dunsmuir v. Scott (C. C. A.) 217 F. 200; New York Life Ins. Co. v. Dunlevy (C. C. A.) 214 F. 1; Pabst Brewing Co. v. Horst Co. (C. C. A.) 264 F. 909. The record shows that both parties made oral requests for special findings, but such a request without specifying the findings desired does not serve to bring to the court's attention any question of law. In view, however, of the fact that the parties and the court below regarded the requests as preserving a right to review the evidence on appeal, we have given careful consideration to the testimony, and we are of the opinion that it was sufficient to sustain the allegations of the complaint.

Error is assigned to the admission in evidence of two maps made by the witness Evans and referred to in his testimony concerning his examination of the land covered by the fire, to determine the extent of the damage caused thereby. The objection was that the maps were incompetent. One of them covered the particular premises on which the fire originated. The other, a larger map, covered the whole area of the timber destroyed or injured by the fire. We think that the objection was properly overruled. Evans was in charge of timber surveys and had been in the Forestry Service for some 15 years. He described in detail the method by which he investigated the damage to the land included in the larger map. He stated that he started from an ascertained quarter section corner, and thence ran lines due north and south; the lines being 2½ chains apart. The defendant urges that the maps were useless for the purpose of proving damages, and directs attention to the fact that, according to the testimony of Evans, four strips were run across each 40-acre tract, and on each tract a plat containing one-tenth of an acre was selected on which to count the trees that had been growing thereon, and that the maps do not show the location of those plats, or whether the one-tenth acre represented a fair average of the timber on the 40 acres. It was obviously impracticable for the government to count every tree that had been destroyed on 4,000 acres of land. The method followed was similar to that by which timber is ordinarily cruised, and there was no attempt to show that as a matter of fact Evans' testimony as to the extent of the damages was unfair or was unsupported by the facts. The maps which he made were in the nature of memoranda from which he testified, and they were undoubtedly competent for that purpose.

The argument on the assignment of error goes farther than the objection...