Hertzog v. Star Logging Co.

• Decision Date: 28 April 1913
• Citation: 73 Wash. 197,131 P. 806
• Parties: HERTZOG et ux. v. STAR LOGGING CO.
• Court: Washington Supreme Court

131 P. 806

73 Wash. 197

HERTZOG et ux. v. STAR LOGGING CO.

Supreme Court of Washington

April 28, 1913

Department 2. Appeal from Superior Court, Snohomish County; W. P. Bell Judge.

Action by James Hertzog and wife against the Star Logging Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Page Hulbert & Husted, of Everett, for appellant.

Robert McMurchie, of Everett, for respondents.

ELLIS J.

The plaintiffs brought this action against the defendant, Star Logging Company, to recover damages on three causes of action, as follows: (1) For the cutting and removal of timber from certain lands belonging to the plaintiffs, of the alleged value of $145. (2) For destroying young growing timber upon the plaintiffs' land of the value of $100. (3) For expenses in the sum of $90 incurred by the plaintiffs in the removal of brush alleged to have been left on the land by the defendant. The defendant denied the allegations of the complaint and set up as a counterclaim an alleged agreement between the plaintiffs and the defendant that, in consideration of the defendant surveying the line between the lands of the parties, the defendant should have the right to take any timber that remained standing upon the plaintiffs' land; that the plaintiffs refused to allow the defendant to remove the timber, by reason whereof the defendant was damaged in the sum of $20, the cost of the survey, $12, the cost of cutting the timber, and $27, loss of profits on the timber. The affirmative matter was traversed by the reply. The jury found for the plaintiffs on the first cause of action in the sum of $145, and on the third cause of action in the sum of $30, but found for the defendant on the second cause of action. The defendant has appealed.

The several assignments of error are all directed to the admissibility and sufficiency of the evidence. It is contended, first. that the court committed error in refusing to strike the answer of the respondent James Hertzog to the following question: 'Do you know what timber of that quality was selling for in the market at that time? You can say whether you know or not. Answer: Yes, sir; it was selling for $3 a thousand.' It is argued that this answer should have been stricken as not responsive to the question. The objection, however, was not placed upon that ground. The motion to strike was in general terms: 'I move that the answer be stricken.'

The answer, though irregularly elicited, was competent evidence.

While not responsive to the question, it was not error to refuse to strike it upon an objection so general as that made. It is further argued that the witness was not qualified to answer the question in that he admitted a lack of definite knowledge as to the market value of timber. We think, however, that the evidence was competent as tending to show market value, regardless of the witness' qualification to testify as to market value generally.

He was testifying as to...