Winchester v. Craig

• Decision Date: 11 January 1876
• Citation: 33 Mich. 205
• Court: Michigan Supreme Court
• Parties: Charles Winchester v. William H. Craig and others. [1]

33 Mich. 205

Charles Winchester v. William H. Craig and others. ^[1]

Supreme Court of Michigan

January 11, 1876

Submitted on Briefs October 29, 1875

Error to Wayne Circuit.

Judgment affirmed, with costs.

D. C Holbrook, for plaintiff in error, relied upon: Symes v Oliver, 13 Mich. 9; Final v. Backus, 18 Mich. 218; Grant v. Smith., 26 Mich. 201; and Greeley v. Stilson, 27 Mich. 255.

Ashley Pond and G. V. N. Lothrop, for defendants in error, cited: Baldwin v. Porter, 12 Conn. 484; Wilde v. Hexter, 50 Barb. 450; Northrup v. McGill, 27 Mich. 238; Dresser Man. Co. v. Waterstone, 3 Metc. 9; Riddle v. Druin, 12 Ala. 591; Moody v. Whitney, 38 Me. 174; Hill v. Canfield, 56 Penn. St., 454; Greening v. Wilkinson, 1 C. and P., 625; Wood v. Moorewood, 3 A. & E., N. S., 440; Read v. Fairbanks, 13 C. B., 729; Rose v. Lewis, 10 Mich. 483; Delegal v. Naylor, 7 Bing. 460; O'Donohue v. Corley, 22 Mo. 393; Menkens v. Menkens, 23 Mo. 252; Evans v. Kymer; 1 B. & Ad., 528; Ripley v. Davis, 15 Mich. 80; Suydam v. Jenkins, 3 Sandf. 626; Kenedey v. Strong, 14 Johns. 128; Stevens v. Low, 2 Hill 132; Kenedey v. Whitmore, 4 Pick. 466; Pierce v. Benjamin, 14 Pick. 356; Beecher v. Deniston, 13 Gray 354; Hurd v. Hubbell, 26 Conn. 389; Cook v. Loomis, 26 Conn. 483; Otter v. Williams, 21 Ill. 118; Sturges v. Keith, 57 Ill. 453; Watt v. Potter, 2 Mass. 76; Sillard v. Whittaker, 3 Bibb 192; Justice v. Mendell, 14 B. Monr., 12; Hayden v. Bartlett, 35 Me. 203; Polk v. Allen, 19 Mo. 467; Cutter v. Fanning, 2 Iowa 580; Fitch v. Blount, 7 C. & P., 478; Cook v. Hartte, 8 C. & P., 568; Davis v. Oswell, 7 C. & P., 804; Moon v. Raphael, 2 Bing., N. C., 310; Bodley v. Reynolds, 8 Ad. & El., N. S., 779; Agnew v. Johnson, 22 Penn. St., 471.

Marston, J. Cooley, Ch. J., concurred. Graves, J., concurred in the result. Campbell, J.

OPINION

Marston, J

Winchester brought an action of trover to recover damages for the conversion by defendants of a quantity of pine saw-logs. It appeared on the trial that defendants were the owners of the north half of section thirty-three, township twenty-one north, range six east, in this state; that they contracted with one Smith to lumber on said land; that by mistake Smith cut the logs in question upon the south half of said section, caused the same to be hauled a distance of about five miles to the Au Sable river, thence run to the boom at the mouth of said river, there rafted and towed from thence to Toledo in the state of Ohio, where they were sold at twelve dollars per thousand feet.

Evidence was also given tending to show that the timber while standing on the land was worth one dollar and fifty cents per thousand feet; that the cost of cutting it was fifty cents per thousand; hauling the logs to the river, five to six dollars per thousand; and their value in the river eight dollars per thousand; that the cost of running them to the boom was thirty-seven and a half cents per thousand; boom charges, one dollar per thousand; rafting and towing to Toledo, two dollars per thousand; and their value there, twelve to thirteen dollars per thousand.

It also appeared that when these logs were cut, the south half of said section was owned by Eber B. Ward, and that he afterwards, and before suit was brought, assigned all his claim and right of action for such cutting to the plaintiff.

The plaintiff claimed to recover the price at which the timber was sold in Toledo.

The court charged the jury that if they found no willful wrong on the part of the defendants, they might award as damages the value of the property where it was taken, viz.: one dollar and fifty cents per thousand, together with the profits which might have been derived from its value in the ordinary market, or that they might take the market value at Toledo, deduct precisely the sum defendants expended in bringing it to that market and putting it in condition for sale, and award the difference between these two sums, with interest, in either case, from the time the conversion took place; and refused to charge that the plaintiff could recover as damages the price for which the logs were sold in Toledo.

The finding of the jury, as appears from the printed record, was as follows: "The defendants cut the timber on the land of Ward by mistake; the quantity cut was one million ninety-three thousand seven hundred and eighty-six feet; the value on the land after it was cut was two dollars per thousand feet; the value at Toledo, and for which the defendants sold the timber, was twelve dollars per thousand; the expenses of the defendants on the timber in cutting and removing the same to Toledo, nine dollars and thirty-seven cents per thousand;" and they assessed the plaintiff's damages at the sum of three thousand six hundred and thirty-one dollars and forty cents.

It will thus be seen that the only question raised by this record is, where parties by mistake cut timber upon the lands of another, and at their own expense transport it to market and sell it, whether the plaintiff in an action of trover can recover as damages the market value at the time and place where it was sold.

An examination of the authorities bearing upon this question shows that they are not in harmony, and that the courts have not always agreed as to the proper measure of damages in this class of cases. Some courts have held, in cases like the present, that the plaintiff could recover as damages the value of the logs at any place to which they were taken and sold or converted, while others have held such a measure of damages applicable only in cases where there was fraud, violence or willful negligence or wrong, and that where none of these elements appeared, but on the contrary the defendants had acted in entire good faith, and had by their labor and skill materially enhanced the value of the property converted, the plaintiff could not recover such enhanced value. In this last class of cases the decisions are not uniform as to whether the value of the property when first severed from the realty, as in cases of timber or coal where this question has arisen, or the value in its original condition, with such other damage to the realty as the injury may have caused, would constitute the proper measure.

It is apparent upon examination that there is no fixed, definite measure of damages applicable in all cases of conversion of property; and while the general rule undoubtedly is, in ordinary cases, that the full value of the property at the time and place of its conversion, together with interest thereon, is the correct measure of damages in actions of trover, yet, as was said in Northrup v. McGill, 27 Mich. 234, "this rule yields, when the facts require it, to the principle on which the rule itself rests, namely: that the recovery in trover ought to be commensurate, and only commensurate with the injury, whether that injury be greater or less in extent than the full value of the property and interest." Indeed, the language here quoted is but an application to actions of trover of the general rule as repeatedly declared in this state, viz.: that except in those actions where punitory or exemplary damages may be given, and those whose principal object is the establishment of a right, and where nominal damages may be proper, the only just theory of an action for damages, and its primary object, are that the damages recovered shall compensate for the injury sustained.--See Allison v. Chandler, 11 Mich. 542; Warren v. Cole, 15 Mich. 265; Daily Post Co. v. McArthur, 16 Mich. 447.

It is somewhat difficult to conceive why, upon principle, this rule should not be applied in its fullest extent to cases like the present. The cases, it is believed, all agree that punitory or exemplary damages are never given or allowed in cases where the defendant has acted in entire good faith, under an honest belief that he had a legal right to do the act complained of, although, even in such cases, he would be conclusively held to have contemplated, and the plaintiff would be permitted to recover, all the damages which legitimately followed from his illegal act, whether in fact he actually contemplated that such damages would follow or not. Such damages, however, would, in no just sense of the term, be held as punitory or exemplary; they would be but the actual damages which the plaintiff had suffered from the wrongful act of the defendant. Such then being the general rules applicable in cases even of active; aggressive wrongs, what is there in this case to make it an exception?

It does not require any argument, and I shall attempt none, to prove that the pecuniary injury sustained by the plaintiff, from the trespass complained of, falls far short of the value of these logs at Toledo; and that to award the value at the latter place as the measure of damages would be much more than compensation, and would, although under a different name, be but awarding exemplary damages, and that, too, in a case where upon principle the defendants had been guilty of no act calling for such a punishment.

It is also clear beyond question that had the plaintiff commenced any other form of action to recover damages for the injury which he sustained, he could not in such action recover the market value of the logs at Toledo. It is very evident, therefore, that the right of the plaintiff to recover the value at Toledo depends entirely upon the particular form of action adopted in this case; as, in any other, where the defendants had acted honestly, he could only recover the amount of the actual injury sustained.

Passing for the present the adjudged cases, I can see no good reason or principle why the measure of damages in actions of trover should be different from that in other actions sounding in tort; and to hold that there is such a...