Colwell v. Alpena Power Co.

178 Mich. 183 | Mich. | 1913

Brooke, J.

(after stating the facts). Two principal contentions are urged by defendant: First, that the verdict and judgment are against the weight of the evidence, and, in any event, grossly excessive; and, second, that the verdict and judgment are against the law because of the alleged failure of plaintiff to show a perfect title to all the lands, claimed by plaintiff to have been damaged.

With reference to the first question the record discloses a very familiar situation. The plaintiff, a man of considerable experience as a lumberman, made a personal examination of his lands, claimed to have been damaged by the high water, and estimated the injury to the timber alone at $3,000. He further testified that the land itself, through erosion along the shore line, was damaged to the extent of $500. A further claim was made that a so-called meadow, which had formerly produced marsh hay, had, on account of the high water, become worthless for that purpose, being now grown up with bullrushes. Plaintiff’s claims were supported to some extent (perhaps not very convincingly) by the evidence of others. On the other hand, defendant introduced the evidence of three expert timbermen, who made an examination of the lands in question. One of these estimated the damage to the timber at $250, another at $30, and still another at practically nothing. The jury heard the testimony of all these witnesses, and apparently became convinced that the extreme claims of neither party were sustained. The verdict is about one-fourth of the amount claimed by plaintiff, and nearly four times the amount fixed by any witness for defendant.

We recognize the rule contended for by defendant, that it is the duty of the trial court and, upon appeal, the duty of this court, to promptly set aside a verdict which is manifestly against the great weight of the evidence. We are, however, not convinced that this is a case in which the rule should be applied. The probative value of the expert evidence introduced by defendant was determinable, and was determined by the jury. They apparently did not fully credit it, though they did permit its influence to greatly reduce the somewhat vague and, perhaps, exaggerated claim of plaintiff. After a careful perusal of the record, we are unable to say that the verdict was either against the great weight of the evidence or grossly excessive.

Relative to the second point, we find that it was not raised upon the trial. It is true defendant introduced an unsigned deed covering a portion of the lands involved, together with certain tax deeds covering other portions thereof. But no requests to charge were preferred, and upon the trial nothing was claimed for these deeds or any of them.

Upon a motion for a new trial, one ground set up was that “the verdict was against the law.” We gather from the remarks of the trial judge in denying the motion that the claim that plaintiff had not shown a good title was then for the first time made. It was then too late. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

The first 10 assignments of error are based upon allegations of error in receiving or excluding certain items of testimony. These have been examined, but we are satisfied that in this respect no prejudicial error was committed.

The judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.