Palmer v. Penobscot Lumbering Ass'n

• Decision Date: 15 April 1897
• Parties: PALMER v. PENOBSCOT LUMBERING ASS'N.
• Court: Maine Supreme Court

38 A. 108

90 Me. 193

PALMER

v. PENOBSCOT LUMBERING ASS'N.

Supreme Judicial Court of Maine.

April 15, 1897.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Action by Charles P. Palmer against the Penobscot Lumbering Association to recover damages for negligence in the management of the plaintiff's logs which came into the Penobscot boom in the spring of 1893. Verdict for plaintiff. Defendant excepts, and moves for new trial. Overruled.

The plaintiff, in his writ, set out four separate claims, in substance as follows:

First. That the defendant company neglected to have its booms in proper condition, and neglected to care for his logs, so that the logs escaped, went down the river, and were lost. He claims the loss of about 460,000 feet of logs, of value of about $4,000.

Second. That by reason of such negligence about 72,000 feet escaped, and he was put to the expense of $400 in picking them up and securing them.

Third. That the defendant wrongfully rafted the plaintiff's logs with logs of other persons, and plaintiff was put to the expense of $264 in separating his logs from logs of other persons.

Fourth. That the defendant did not seasonably raft the plaintiff's logs out of the booms, especially those which came into the booms in the early part of the season, and he suffered great loss, to wit, $10,000, there having being a falling off in the price of logs from the early season's price to the prices of the later part of the season and the next year.

The presiding judge instructed the jury to render special findings on each of these claims, and they returned a verdict of $2,899.02 as the damages from defendant's negligence in the rafting of logs as set out in the last claim of plaintiff's writ.

Upon the question of damages the presiding justice instructed the jury as follows: "It is claimed on the part of the plaintiff that there has been evidence sufficient to satisfy you that up to July 6th a fair market price for logs of that character was $11.50 to $11.75, varying a little. But the defense says that this was a special price by reason of special and peculiar circumstances; that it was because of the fact that only a few logs were coming, and many logs were wanted, but that, if the great mass of the logs had been turned out suddenly, or with great rapidity, at that time, the price would have dropped; that it was a temporary price, affected by peculiar and temporary reasons, and was not the market price on which you should base your computations. If it is true, gentlemen, that that was only a special price by reason of the peculiar situation at that particular time, although the plaintiff might have sold a large quantity of his logs if he could have had them all at that time, still he was not entitled to his logs any faster than anybody else was entitled to their logs, without partiality, taking them as they came, driving them to the gap, through the gap, and rafting them. So, then, if you come to this question of damages, it is for you to say how much was this special price of $11.50 to $11.75 prior to July 6th affected, because, so far as it was affected, you should consider it in your computations.

"Now, next, did the market drop then, and, if so, how much? You see it is a matter requiring the carefullest consideration and computation to get an accurate result. How much did the market drop? How long was this plaintiff delayed longer than he should have been? You appreciate, of course, that if there had been but one mark of logs on the river, and this, of course, had been Mr. Palmer's, or anybody's else, that person could have gotten them there so fast as the river would have brought them, and there would have been no conflict between him and anybody else; but, inasmuch as numerous others had numerous marks of legs in the river, they were all entitled to equal and concurrent rights, and each must give way to the other so that they could all exercise them to the extent possible under the circumstances.

"[Well, gentlemen, 1 give you this general rule: that if, by reason of the neglect of this corporation to exercise reasonable diligence, in view of the whole situation, in obtaining, rafting, and delivering logs, this plaintiff's logs were unreasonably delayed, and that during the period of that unreasonable delay there was a drop in the real market price so that between the time when Mr. Palmer ought to have had his logs and the time when he did have them there was a drop of one cent. or one dollar, or two dollars a thousand, in the difference between the real market price at the time when he should have had them and when he did have them, that difference would be the measure of damages that he would be entitled to in that respect, upon such logs as he should have had but did not have. That is all there is to it.]"

To so much of the foregoing charge as is embraced in brackets the defendant took exceptions.

The defendant also took exceptions to the admission of the following letter, written by one of the directors of the defendant company to its president:

"Bangor, Me., May 25, 1893.

"John Cassidy, Esq. Dear Sir:

"I am continually being importuned by different interests, log owners as well as manufacturers. It seems to be the universal opinion that the logs were never rafted so slowly at the boom before, and that...