Gates v. Young

82 Wis. 272 | Wis. | 1892

Cassopay, J.

On the former appeal a judgment of non-suit was reversed on the ground that' there was some evidence which might have justified the jury in finding that the defendant Young, or his deputy, had been guilty of negligence in making the scale of the logs at the boom between March 30,1886, and April 1,1887. 78 Wis. 98. Upon the last trial the case was submitted to the jury, and a verdict was returned in favor of the defendants. A' reversal is now sought on the ground of errors'in the rulings of the court upon the trial. The correctness of such rulings depends very much upon the true measure of Young’s liability to the plaintiff, as such lumber inspector, upon the bond in question. Such liability, having been created by statute, is necessarily to be measured by the language of the statute.

The bond is in the form prescribed, and is conditioned to the effect that Young would “ faithfully perform his duties as lumber inspector of district No. 2, and deliver to his successor in office all bills, papers, journals, books, and other effects appertaining to his office.” Sec. 1732, R. S. His duties as lumber inspector, thus to be faithfully performed, are indicated by another clause of the same section, which provides that “each lumber inspector shall, before entering upon the duties of his office, take and subscribe an oath that he will faithfully discharge the duties of his office to the best of his lenowledge, judgment, cmd ability.” The statutes also provide, in effect, that each such inspector “ may appoint one or more deputies, for whose conduct and fidelity in the discharge of his duties as such he shall be responsible upon his official bond.” Sec. 1734, R. S. The statutes further provide that “ each lumber inspector and his deputies shall, in surveying or measuring logs, malee such allowance for hollow, rotten, or crooked logs as would make them equal to good, sound, straight, merchantable logs; and all logs that are straight and sound are to be measured at their full size, inside the bark, at the small end; and all logs over twenty-four feet long, and not exceeding thirty-six feet, shall be scaled or measured as two logs, allowing such rise from the first to the second log as the same may require, or as may seem, proper in the opinion of the inspector or his deputy.” Sec. 1736, E. S. Such bills, certified by the inspector or deputy, are made by the statutes “ presumptive evidence of the facts therein contained, and of the correctness of such scalement or measurement, in all courts, except in favor of the inspector or deputy inspector who made the same.” Sec. 1735, E. S.

Manifestly the duties of such deputies are no more broad nor extensive than are those of the inspector himself. Each of them is to perform his duties faithfully, and “ to the best of his knowledge, judgment, and ability.” Fidelity is demanded in the formation of every opinion and judgment in making allowance for hollow, rotten, or crooked logs, and in the increase of the size of long logs. The statutes nowhere undertake to make the inspector an absolute guarantor or warrantor of the accuracy of any scale or measurement made by himself or any of his deputies. So long as he and they, in the performance of such duties, act with, fidelity and to the best of their knowledge and ability, there can be no liability for mere inaccuracies of opinion or mistakes of judgment. Smith v. Gould, 61 Wis. 31; Fath v. Koeppel, 72 Wis. 289. Otherwise, where the duty is purely ministerial. Robinson v. Rohr, 73 Wis. 436.

Much less can there be any liability for the shortage of logs never pointed but to the inspector, and which he was never in fact requested to scale. The scale bills are not conclusive, but at most presumptive, evidence. It is conceded in the complaint that the scalement on the bank of the river prior to May 1, 1886, of 10,845,940 feet, was true and correct. There is no claim or pretense that all of those logs so scaled on the bank were or came within, the boom at La Crosse between March 30, 1886, and April 1, 1887. On the contrary, it is conceded that no more than 6,446,940 feet of those logs were or came within that boom during that time. This is nearly four and a half millions less than the amount so scaled on the bank, and about three millions in excess of the actual measurement at the boom as claimed by the defendants. There is no pretense of any liability on the part of the defendants as to that portion of the plaintiff’s logs which did not reach the boom within the period last named.

Two questions were presented for the consideration of the jury: What was the amount of the plaintiff’s logs which were or came within the boom at La Crosse during the period last named ? Did the defendant himself, or by his deputies or deputy, faithfully scale or measure the same to the best of his knowledge, judgment, and ability? As indicated, both of these questions were resolved by the jury in favor of the defendants.

This brings us to consider whether there were any errors in the rulings of the trial court. Numerous errors are assigned to portions of the charge, but none of them appear to be prejudicial to the plaintiff. We think the court was justified in charging the jury, in effect, that the scalement on the bank was only material in determining the true amount at the boom; that the mere fact of a discrepancy in the amount of the scalement on the bank and the scalement at the boom, unaccounted for, standing alone, would not justify a finding in favor of the plaintiff; that the. mere fact that the logs were not reported by the scaler at the boom during the period named was not sufficient to sustain a finding that the scalement at that place was fraudulent, dishonest, or imperfect. It is true, as contended by counsel for the plaintiff, there are some inconsistencies in the charge. In portibns of the charge the jury were told, in effect, that they could not find in favor of the plaintiff unless Young or his deputy had been unfaithful, negligent, or wanting in ordinary diligence or skill in the discharge of such duties; while in other portions of the charge they were, in effect, told that they might so find if either of them, in the performance of such duties, was guilty of any mistake or imperfection. So in one portion of the charge they were told, in effect, that they might find in favor of the plaintiff if Young or his deputy made the scalement dishonestly or unfairly, or with an inadequate degree of diligence and skill, so that the plaintiff had been really wronged by it.; while in another portion they were told, in effect, that there was no evidence tending to show that either of them corruptly or fraudulently made an incorrect scalement at the boom. Being satisfied that this last view of the evidence is correct, it is obvious that the plaintiff was in no way prejudiced by such inconsistency; and this is true of all of such inconsistencies.

It is claimed, in effect, that the defendants were improperly allowed to give evidence tending to impeach the scalement on the bank of the river; and that this ruling was inconsistent with and not cured by the portion of the charge to the effect that the defendants were bound by the scale bills of the measurement on the bank of the river, and could not impeach the correctness of the same: This is explained by the learned trial judge as follows: “ Something has been said about the right of the defendant to impeach the scale on the bank. As I understand the evidence, there has been no attempt by anybody to impeach that scale on the bank. The plaintiff claimed that the scale represented the amount of logs as being too low, and introduced evidence to show that it was too low; that there were really more logs than that scale showed. The plaintiff had a right to try to show it, and introduced evidence to prove that the amount of logs was more than the scale bill showed; and the defendant has introduced evidence to show that the amount was at least as small as the scale bill showed. That is what I think that amounts to.” As indicated, the complaint admitted the correctness of that scalement. We discover no error in such rulings.

For the same reasons we must hold that the evidence of the estimates of the amount of timber grown upon the land from which the logs in question were taken was in no way prejudicial to the plaintiff. Such evidence on the part of the plaintiff and defendants was, to say the least, very remote, and related solely to a fact admitted in the pleadings, and hence about which there could be no legitimate dispute. Still more remote was the testimony sought to be given on the part of the plaintiff, as to the several amounts of money he had paid to scalers, loggers, and drivers on account of the logs so scaled on the bank; and hence the same was properly excluded.

The verdict is supported by the evidence. We find no error in the record.

By the Court.— The judgment of the circuit court is affirmed.