Gordon v. Grand Rapids & I. R. Co.

• Decision Date: 28 December 1894
• Parties: GORDON v. GRAND RAPIDS & I. R. CO.
• Court: Michigan Supreme Court

61 N.W. 549

103 Mich. 379

GORDON v. GRAND RAPIDS & I. R. CO.

Supreme Court of Michigan

December 28, 1894

Error to circuit court, Muskegon county; Albert Dickerman, Judge.

Action by Harry E. Gordon against the Grand Rapids & Indiana Railroad Company. From a judgment for plaintiff, defendant brings error. Reversed.

T. J O'Brien and J. H. Campbell, for appellant.

Chamberlain & Cross, for appellee.

LONG, J.

Plaintiff sues to recover damages for loss sustained by injury to standing timber, and the burning of logs, wood, and posts upon 160 acres of land adjoining defendant's railway Muskegon county, by a fire which occurred in the latter part of September, 1891. The suit was brought in April, 1893, and a trial in October following resulted in a verdict and judgment for plaintiff of $1,600. Defendant brings error. The defendant relies upon the following claimed errors: (1) In regard to the elements and measure of damages; (2) in the admission of testimony as to statements alleged to have been made by the section foreman after the fire; (3) in improper and prejudiced statements of plaintiff's counsel on the trial; (4) in allowing testimony as to statements made by Gordon to the section foreman. Six months after the fire plaintiff, through his attorney, presented a written statement of his claim for loss, as follows:

60 cords of wood, at $1.00 .............. $ 60 00

25,000 feet of logs ...................... 100 00

Damages to 80 acres of standing timber ... 400 00

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$560 00

On the trial, in October, 1893, two years after the fire, plaintiff claimed for:

100 cords of wood, being 50 cords at $1.00, and 50 cords at 70 cents .. $ 85 00

50,000 feet of logs .................................................... 220 00

200 tamarack posts ....................................................... 4 00

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$309 00

It is insisted that the balance of the claim upon which verdict was found was for total loss of 120 acres of standing timber equal to 5,000 cords of wood, and for which he was allowed $1,291, making, with the other claim, the amount of the verdict. It is insisted that no such result could have been reached if the legal measure of damages had been applied, and that in measuring the damages the condition of the timber at the time of the trial should not have been taken into account, but its condition during the fall and winter after the fire; that loss of profits could not be considered; that the legal measure of damages is the increased cost, if any, of cutting the timber, made necessary by the action of the fire, in that fall and winter. It is claimed that these rules were disregarded, and that plaintiff was allowed to go to the jury on an estimate of damages stated in a lump sum, based upon the condition of the timber at the time of the trial, which was two years after the timber burned, and for a total loss of all the timber including loss of profits, and increased value of the wood a year after the fire. The plaintiff was permitted to show the condition of the timber at the time of the trial, and that it was comparatively worthless, so that in estimating the damages the jury had the testimony before them upon which to base a verdict as for a total destruction, when, in fact, it appeared that the timber was not totally destroyed, but that the fire rendered it more difficult to cut it. It appeared from the plaintiff's own testimony that before the fire 40 acres of the land had been cleared, and nothing of any amount remained on that 40. What remained upon the other portion of the land was only about 100,000 feet of soft maple, and the rest was fit only for wood and this would cut from 40 to 50 cords to the acre. No great amount of timber was burned. Plaintiff testified that he had cut off a considerable part of the timber after the fire for wood, but he had to pay higher ...