T. N. BROWN AND HOWARD BROWN, COPARTNERS DOING BUSINESS UNDER THE FIRM NAME OF BROWN MOTORS, APPELLANTS, v. CLAUDE T. LINDSAY AND RAY T. LINDSAY, COPARTNERS DOING BUSINESS UNDER THE FIRM NAME OF MOUNT ROSE LUMBER COMPANY, RESPONDENTS.
No. 3618
Supreme Court of Nevada
March 6, 1951
Rehearing Denied April 3, 1951
228 P.2d 262
EATHER, J., concurs.
HORSEY, formerly Chief Justice, did not participate, his term of office having heretofore expired.
MERRILL, J., did not participate, he having become a member of the court after said matter was argued and submitted.
ORDER DENYING PETITION FOR REHEARING
March 29, 1951.
Per curiam:
Rehearing denied.
The originаl opinion is corrected by striking out the words “as an adverse witness,” in lines 3 and 4 of the fourth paragraph thereof.
Cooke & Cooke, of Reno, and W. G. Harmon, of San Francisco, California, for Respondents.
By the Court, MERRILL, J.:
This is an appeal from judgment of the Second judicial district court of the State of Nevada in and for the county of Washoe in favor of respondents in the sum of $5,526.43, plus costs, and from order of that court denying motion for new trial. The quеstions involved have to do with the sufficiency of the evidence to support court findings of negligence and damages.
Respondents (plaintiffs below) were copartners who operated a saw mill at Reno and carried on logging operations on government lands. In 1944, under government contract, they engaged in operations in Sierra County, California. They employed nine or ten men in this operation and various items of logging equipment including two tractors, one of which was used exclusively for skidding logs and the other largely for road making.
The amount of timber in the area was limited. By early September, 1945, they had concluded that it would not be practical to operate in the аrea for another season and had determined to make every effort to get out all logs during the 1945 season. To that end they had arranged to rent a third tractor from the Isbell Construction Company of Reno to be used for road making, enabling them to use both of their own tractors exclusively for logging. This, they felt, would almost double their output and pеrmit them to complete operations in that area before winter set in.
Just before the rented tractor was due, one of their own tractors, an International, required clutch repair.
Respondent Ray T. Lindsay went to appellants’ service department in Reno, was referred to Christensen, and arranged with him to go to the scene of their logging operations and there make the necessary repairs. The nature of the difficulty was explained to him and also the need for immediate action. Lindsay explained that they were depending on production of that tractor to keep their mill going, that any delay might mean shutdown of the mill and would prevent trucking and logging crews from operating to capacity.
On September 15, Christensen, with one helper, set out for the scene of operations in a pickup truck. Due to the steepness of grade of the logging road they were forced to stop some distance from where the tractor was at work. The tractor was brought down the mountain by its driver, Brown, an emрloyee of respondents, to a relatively level spot more accessible to the pickup truck, and Christensen and his helper commenced the work of repair. During the course of the repairs the tractor started to roll, could not be controlled, and plunged to the bottom of a canyon, suffering serious damage.
It is for that damage and consequent loss of use that suit was brought and judgment rendered in favor of respondents. The matter was tried before the court without a jury. In support of the judgment was a finding of negligence on the part of Christensen and his helper as cause of the accident.
Appellants first contend that there is insufficient evidence to establish that Christensen was negligent; that the evidence, on the contrary, establishes that the driver,
In many details the evidence is in conflict. First there is dispute as to who (Brown or Christensen) was responsible for selecting the site for repairs. Certаinly the site was an extremely poor one as the facts themselves demonstrate, although, coming from the extreme steepness of the logging road it seemed to both Brown and Christensen to be sufficiently level. At the very least, the testimony agrees, the tractor should have been blocked.
However, there is evidence from which it might be found that Christеnsen assumed the responsibility for the site of repairs and that Brown accepted his judgment in the matter. Brown testified that in bringing the tractor down the road he encountered Christensen where the pickup truck had been parked. Brown states, “He picked up his parts there, and he couldn‘t work there; it was a little too steep, so he motioned mе on down to a level spot.”
Brown went on down the road about 150 yards, then “I took the cat to this level spot, turned it around, and parked it right there above the road. * * * I said, ‘Is it alright?’ and he said, ‘Yes,’ and they went right to work on it.”
Moreover, when Christensen commenced work of repair, the inherent danger, due to the site and the unblocked condition of the trаctor, was as apparent to him as to Brown, if not more so in view of his training and experience. Nor can it be said that Brown withheld from him any facts which would have affected his judgment.
It is then contended by respondents that Brown was negligent in turning the tractor over to Christensen with its brakes unset. There is, however, evidence to the contrary; evidence from which the court might well have found that when Christensen commenced work the brakes were set and the gears engaged in compression.
Accordingly, it is the view of the court that there is sufficient evidence to support the finding of negligence on the part of Christensen and his helper.
This brings us to consideration of the question of damages. Damages allowed by the lower court were: loading and transporting the damaged tractor to and from Reno for repairs, $276; hiring a tractor for 14 days to take the place of the damaged tractor, $978; damage to plaintiffs by reason of inability to haul out 360,000 feet of logs, $3,772.43; damage to plaintiffs by shutting down mill becаuse of failure to supply logs, $500; a total of $5,526.43. Each item is challenged by appellants upon the ground that it is unsupported by evidence.
The evidence shows that Lindsay, the day of the accident, made demand upon appellant T. N. Brown for redress; that appellant Brown disclaimed responsibility, agreeing only to repair the tractоr as quickly as possible. Appellants not having facilities for getting the tractor out of the canyon to which it had plunged or for repairing it in their own shop, the tractor was taken at respondents’ expense to the yard of Isbell Construction Company. Transportation of the tractor to and from its site of repair cost respondents $276. The evidence is clear as to the items which make up this total cost and as to the facts of their payment by respondents. The judgment of the lower court is sustained as to this item of damage.
The evidence shows that respondents attempted to secure a tractor to replace the damaged one but were
Thе lower court has allowed damages not only for the unrecovered logs but for the rent of the Isbell tractor as well. It appears from the evidence, however, that the Isbell tractor was not a substitute tractor. It was rented pursuant to respondents’ original plan of increasing output through utilizing additional equipment. The 360,000 feet of logs which thе court found might have been recovered but for the accident, could not have been recovered without the added help provided by the rented tractor. Had the damaged tractor been available, respondents might well have recovered those logs, but in so doing they would also have had to rent the Isbell tractor in accordance with their original plan and make those payments in rental which they did in fact make.
It is held, therefore, that the lower court was in error in granting judgment in the sum of $978 rental of the tractor from Isbell Construction Company.
Further, the evidence is sufficient to establish the monetary extent of the loss. The judgment granted by the lower court was based upon sums actually expended by respondents upon the lost logs for stumpage, felling, bucking, limbing and road work. Eaсh item is supported by evidence. The judgment did not include any element of anticipated profit.
Appellants contend that had respondents properly attempted to minimize damages, this timber would not have been felled and the damage would have been avoided. Steps which a damaged party is required to take to minimize or prevent aggravation of damages are those which a reasonably prudent man might be expected to take. See
While the timber apparently was all felled after damage to the tractor had occurred and with full knowledge
Appellants point out that the evidence shows that 64,000 feet of the lost logs were cut under a government contract executed after the accident occurred. They contend that respondents’ entering into this new contract demonstrates lack of prudence. For all that can be learned from the record, however, this contract was no more than a government permit to cut timber for a fixed stumpage fee of so much a foоt. Respondents make no claim of loss based upon unfulfilled contract obligations. If continued logging was not in itself imprudent, the fact that a new contract or permit had first to be secured will not render the action any less prudent.
The judgment of the lower court is sustained upon this item of damage.
Upon the item of $500 damage to respondents by shutting down of the mill, appellants contend that there is a complete lack of competent evidence; that the only evidence offered is uncertain, speculative and conjectural. In this regard respondent Ray T. Lindsay testified as follows: “With the loss of the tractor, we were faced with a slight decrease, as I have said, at lеast a 20 percent decrease in the amount of logs we were getting in,
“Q. * * * Did the mill shut down? A. Periodically. You may have spells of a half hour, or there may be a half day maybe we wouldn‘t even operate the mill, and maybe use them to do other things rather than cutting lumber because of the lack of logs. * * * I believe there was a half day or so in which we didn‘t operate, and then there were periods of a half hour or hour during the two week period in which lost time was involved. * * *”
“Q. Was there any other reason for the mill shutting down from time to time? A. There may have been. There may have been other repairs or other reasons, such as making minor repairs, but in addition to those, there was also this definite delay and loss of time due to insufficient logs.
* * * * * * *
“Q. What do you base the estimate of $500.00 that you have set up here? In what way do you reach that? A. That is based on the amount of the pаyroll we had per day and the loss of payroll in the production. * * * Our payroll in the mill was in the neighborhood of $250.00 or $275.00 a day.”
“Q. There was a shutdown then, if I understand your testimony, of a couple of days all told on account of this shortage and supply of logs? A. Approximately, yes. It totaled up approximately a couple of days.”
The rule аgainst the recovery of uncertain damages generally is directed against uncertainty as to the existence or cause of damage rather than as to measure or
The uncertainty in the testimony applies not to the existence or cause of damage but rather to its extent or measure. Even here the uncertainty is not speculative or conjectural in character. The testimоny as to the extent of damage is not based upon inference or assumption as to what may have occurred but upon recollection as to what actually did occur. In the view of this court, the extent to which that recollection was uncertain in detail will not serve to render it wholly insufficient. Accordingly there was evidence to support the finding and judgment of the lower court in this respect, and upon that item of damages the judgment is sustained.
The judgment of the lower court is modified by eliminating therefrom the item of $978 tractor rental. Judgment, as so modified, in the sum of $4,548.43 and order denying motion for new trial are hereby affirmed. The respective parties shall bear their own costs upon this appeal.
BADT, C.J., and EATHER, J., concur.
ORDER DENYING PETITION FOR REHEARING
April 3, 1951.
Per curiam:
The petition for rehearing, including request for modification of order with reference to costs, is denied.