McGuire v. Post Falls Lumber & Manufacturing Co.

• Decision Date: 11 April 1913
• Parties: HENRY MCGUIRE, Respondent, v. POST FALLS LUMBER AND MANUFACTURING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

131 P. 654

23 Idaho 608

HENRY MCGUIRE, Respondent, v. POST FALLS LUMBER AND MANUFACTURING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 11, 1913

DAMAGES-SUFFICIENCY OF EVIDENCE-INJURY TO PERSONAL PROPERTY-MEASURE OF DAMAGES-PROOF OF DAMAGES.

1. One who engages in floating logs and lumber down a stream must exercise reasonable care in order to avoid injury to the property of others. The fact that the stream is navigable does not give one the right to dump logs and timber into the stream and allow the same to go unattended and without being cared for, and form jams and dams in the stream and divert the current of the stream on to the property of other persons, and thereby injure and damage the same.

2. Evidence in this case examined, and held sufficient to go to the jury to establish the charge of negligence.

3. In an action for damages on account of injuries to property witnesses should not ordinarily be allowed to testify to the gross amount of the damage sustained without first detailing the injuries to the property and the damage to each part piece or parcel or the value of the same at the time of the injury or destruction. The witnesses should be required to give to the jury the detailed items and incidents of damage so as to enable the jury to make their own calculation and form their own conclusions as to the aggregate damage sustained.

4. In actions for damage to personal property, the measure of damage should be the value of the property at the time of its destruction where the property has been totally destroyed or so badly injured or impaired as to render it valueless for the use to which it was originally designed and appropriated. Where, however, the property is merely damaged and is capable of being repaired, the measure of damage should be the cost of repair together with the value of the use of the property during the time it would take to make the repairs.

5. Evidence in this case as to the amount of damage sustained examined, and held that it is insufficient to support a verdict and judgment in the amount rendered in this case.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action for damages on account of injuries to and destruction of personal property. Judgment for plaintiff. Defendant appealed. Modified.

New trial granted. Petition for rehearing denied.

E. N La Veine and W. F. Morrison, Jr., for Appellant.

Pritchard creek was a navigable stream for the floating of logs. Defendant had a perfect right to drive said stream exercising due care in the floating of logs in said stream. (Idaho Northern R. Co. v. Post Falls Lbr. Co., 20 Idaho 705, 119 P. 1098.)

"Where the verdict is manifestly against the overwhelming weight of the evidence, so as to suggest that it was rendered through bias, prejudice or passion and that injustice has been done thereby, the verdict must be set aside." (Houghton v. Loma Prieta L. Co., 152 Cal. 574, 93 P. 377; Aultman Miller & Co. v. Scheele, 34 Neb. 819, 52 N.W. 817; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635.)

Unless the cost of restoration exceeds the value of the thing injured, it becomes the measure of damages; otherwise the value of the thing injured becomes such measure of damages. (Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997, 17 L. R. A. 426; Lentz v. Carnegie, 145 Pa. 613, 27 Am. St. 717, 23 A. 219; Barstow Irr. Co. v. Cleghon (Tex. Civ. App.), 93 S.W. 1023.)

"It is only in exceptional cases, if at all, that a witness is permitted to testify to the gross amount of damages sustained. That question is ordinarily for the jury." (Berg v. Humptulips Boom & River Improvement Co., 38 Wash. 342, 80 P. 528.)

"While the witness might, after stating that he had been damaged and after giving the particular items, have been permitted to state the sum total, the statement by him of his conclusion in a lump sum furnished no basis for calculation by the jury. A verdict based upon such evidence is based upon the conclusion of the witness, and not that of the jury." (13 Cyc. 211; Dougherty v. Stewart, 43 Iowa 648; Smith v. Eubanks & Hill, 72 Ga. 280; Baltimore R. Co. v. Sattler, 102 Md. 595, 62 A. 1125, 64 A. 507; T. C. Power Co. v. Turner, 37 Mont. 521, 97 P. 950-957.)

Witnesses must state facts, and are not permitted to give their opinions founded on such facts; nor can they give inferences or deductions drawn from them. (3 Elliott on Ev., sec. 2006; Norman v. Wells, 17 Wend. (N. Y.) 136.)

A. G. Kerns, for Respondent.

The opinion of witnesses may be taken directly on the question of damages for the purpose of aiding the jury in reaching the proper amount, leaving it for cross-examination to develop the basis of any opinion given by the witness. (3 Elliott on Ev., sec. 2007.)

In the case of Boise Valley Const. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, this court adopted a rule of damages to which the proofs of respondent conform. (Lee v. Boise Development Co., 21 Idaho 461, 122 P. 851.)

Where one undertakes to utilize such a stream for the floating of logs, he must do so, having due regard for the interests and property rights of others along such stream, and must exercise care proportionate to the natural conditions of the stream, and dangers and difficulties of the undertaking, and the liability of inflicting injury upon others. (Idaho Northern R. R. Co. v. Post Falls etc. Co., 20 Idaho 695, 119 P. 1098.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

Respondent obtained a judgment in the lower court for $ 2,250, as damages sustained on account of appellant allowing logs that it was floating down Pritchard creek in Shoshone county to pile up and cause a jam and dam the stream, and thereby wash out and destroy respondent's ditch and flume and sawmill. Respondent's mill is situated near Pritchard creek, and he had a ditch about 1,800 ft. long taking water from Pritchard creek and dropping it into the pond near his mill. From the pond the water was carried by means of a flume a distance of 560 ft. to respondent's mill. During the high-water period of 1910 appellant company commenced floating a large quantity of logs it had banked along Eagle and Pritchard creeks, and it seems that many of these logs piled up and formed a jam in the channel opposite respondent's property and diverted the main stream on to his property, filling up the ditch and washing away the flume and damaging his property generally.

The damage here claimed is the result of the same flood and log-drive set out and involved in Idaho Northern R. R. Co. v. Post Falls Lumber Co., 20 Idaho 695, 119 P. 1098, and the "McGuire's Mill-race" referred to in the opinion in that case is a part of the same property involved in the present case.

The evidence was submitted to the jury, and they were thereafter taken to the place and allowed to inspect the stream and the premises where the damage is alleged to have been committed.

The chief contention made is that the evidence is insufficient to support the verdict and judgment. It is contended that the evidence shows that the Idaho Northern R. R. Co. was responsible for the injury, and that appellant was not responsible, and that it had used such care and diligence in floating logs down the stream as the law devolves upon one using a navigable stream as indicated by this court in Idaho Northern R. R. Co. v. Post Falls Lbr. Co., supra. The railroad company was not a party to this action, and whatever negligence may be attributable to the railroad company, we are satisfied that there has been enough shown in this case to hold appellant for negligence in allowing the logs to form jams and dam up the stream and turn the current on respondent's property, and thereby injure and destroy the same.

What was said by this court in Idaho Northern R. R. Co. v Post Falls Lbr. Co., supra, with reference to the responsibility of one floating logs and lumber down a stream is equally applicable in the case at bar. In that case the writer of this opinion, speaking for the court, said: "The person who undertakes to float logs and lumber down a stream must exercise reasonable care...