220 P. 740 | Or. | 1923
The plaintiff, as owner of a gill-net used for fishing in the Columbia River, brings this action to recover damages for the destruction of a part of his net by the negligent operation of a purse-seine owned by the defendant. It is averred in the complaint and admitted by the answer that the defendant at all the times mentioned in the complaint was and now is the owner of a certain fishing vessel called “President Lincoln III,” together with the necessary fishing appliances and paraphernalia belonging to it, including what is generally known as a purse-seine. The manner of operating both the gill-net and the purse-seine is averred in the complaint. In substance it is charged that the defendant’s outfit, consisting of the vessel and purse-seine, was operated by his officers, agents, servants, employees and crew on his behalf and for his benefit and that they com
“That after defendant, through his duly authorized officers, agents, servants, employees and crew had so wrongfully, negligently and carelessly laid ont and was laying out his said purse-seine in the manner and fashion as above set forth, the tide drifted defendant’s said purse-seine against and over and across plaintiff’s said gill-net and while the same was so drifting as aforesaid, defendant, through his duly authorized, agents, servants, employees and crew, wrongfully, willfully, carelessly and negligently, and with utter disregard to plaintiff’s property, caused the same to be hauled, pulled or ‘pursed’ together, resulting in the tearing and damaging of plaintiff’s said gill-net to such an extent that plaintiff lost one half thereof, which said one half of said net was at that time of the reasonable value of $1000.”
The complaint also contains the following averment:
*437 “That on account of the shortage of twine necessary for the reconstruction of plaintiff’s said gill-net and on account of the shortage of labor existing at that time, all of which was well known to defendant, plaintiff was unable to knit one half of his said gill-net, so as to be of the same size as before it was so negligently and carelessly torn by defendant as aforesaid; neither was plaintiff able to purchase a net in extent and size equal to the amount lost by him through defendant’s carelessness and negligence, or any other kind of gill-net suitable for fishing at that time of the year, and was therefore obliged to fish from the twenty-second day of July to the twenty-fifth day of August, when the salmon fishing season with gill-nets closed, with only one half of his net, resulting to plaintiff in the further damage of $1500.”
The prayer of the complaint is for judgment against the defendant for $1,000 for loss and damage to the plaintiff’s net; for the further sum of $1,500 for loss of profits; and for the third sum of $500 for punitive damages and for costs and disbursements.
Affirmatively, the answer alleges in substance that the defendant at all times set forth in the complaint was the owner of the vessel named, together with her tackle, apparel, furniture, machinery and appliances, including one purse-seine complete; that prior to all the times set forth in the complaint, the defendant had chartered and leased the whole outfit mentioned together with the navigation thereof to certain individuals, to be used in fishing; that the navigation and control thereof was vested exclusively in those individuals and at the time of the alleged injury to the plaintiff’s property, the defendant had no control over the vessel or the navigation thereof.
At the trial, the plaintiff gave evidence in chief of the manner in which the injury was inflicted to the effect that he had laid out his gill-net across the channel of the Columbia Eiver near the mouth thereof
On his behalf, the defendant gave evidence to the effect that at the time of the accident and for a long time prior thereto, he had leased the vessel and seine to some parties who were then in charge of same and that he had no control over them or direction in their operation. On cross-examination, it was brought out that the fish caught by the “President Lincoln III” for that season were delivered to a packing company and that the defendant drew from the company the money which paid for the fish thus delivered. On redirect examination he explained in substance that he drew the money at the request of his lessees for the purpose of dividing the same among them according to their several interests in the fishing venture of that season. In rebuttal, over the objection and exception of the defendant, the plaintiff called the bookkeeper of the packing-company who exhibited leaves from its loose-leaf ledger showing an account against the “President Lincoln III” during the season of 1918, including payments made by the company on account of fish delivered. He testified that the defendant had drawn the payments which were made
Among other things, in charging the jury the court said:
“Now, counsel for both sides gave you a great many illustrations of what the law is. Some of them were right, and some of them were not right — they were right in that particular instance that they cited. (For instance, Mr. Fulton was laying great stress on the automobile, and the farmer’s wagon, which was good law under a case such as he cited, but might not be the law in all cases.) ”
At the close of the charge, the defendant excepted to the portion of the excerpt just quoted which is included in parentheses. When taking exception to the instruction, some colloquy between the court and the counsel occurred when the judge said to defendant’s counsel in the presence of the jury:
“You will be allowed an exception, and hereafter you will not probably argue the law to the jury,” to which language the defendant by his counsel excepted.
The principal grievance the defendant has against the judgment is that the case ought not to have been submitted to the jury because there was no evidence to counteract the averment and the evidence of the defendant that his outfit was under lease at the time the injury occurred and that he had no control over the same. This contention is futile under such precedents as Houston v. Keats Auto Co., 85 Or. 125 (166 Pac. 531); West v. Kern, 88 Or. 247 (171 Pac. 413, 1050, L. R. A. 1918D, 920); Doherty v. Hazelwood Co., 90 Or. 475 (175 Pac. 849, 177 Pac.
Under the earlier precedents in this state, such as Serles v. Serles, 35 Or. 289 (57 Pac. 634), the rule substantially as the defendant contends has obtained when the matter was before a trial court upon the
The ownership of the purse-seine fishing outfit having been admitted, it Avas competent to show that the defendant collected the proceeds of the catch. This was shown by his oavu cross-examination. It is true that he explains why he collected the money, that it was by authority of his lessees and that he was acting for them in so doing; but that is not conclusive upon the jury. They had a right to infer from his apparent assumption of authority over the proceeds of the catch that he was the owner and in control of the vessel and the seine that caught the fish.
Complaint is made of introducing the ledger accounts of the packing company to whom the fish
“The general rule is that entries of a third person of transactions between such third person and others not parties to the litigation, or one of the parties litigant, are not admissible because they are hearsay and res inter alios acta.”
See, also, Watrous v. Cunningham, 65 Cal. 410 (4 Pac. 408); Treat v. Barter, 7 Conn. 274; Union Bank v. Call, 5 Fla. 409; Mercier v. Copelan, 73 Ga. 636; Harrison v. LaGow, 1 Blackf. (Ind.) 307; Levy v. Holberg, 71 Miss. 66 (14 South. 537); Perrine v. Hotchkiss, 58 Barb. (N. Y.) 57; Sloan v. McDowell, 75 N. C. 29; Powers v. Hazelton etc. Ry., 33 Ohio St. 429; Minton v. Underwood Lumber Co., 79 Wis. 646 (48 N. W. 857). The principle is that the party against whom the books of a third party are offered in evidence is a stranger to the transaction delineated. The entries are not made under oath or in pursuance of any official duty and the' party against whom they are offered has no opportunity for cross-examination. So far as the oral declarations of the bookkeeper to the effect that the defendant drew the money are concerned, the only objection that can be urged against them is that they were not proper rebuttal but were part of the plaintiff’s case in chief. This, however, has to do with the order of proof which is within the discretion of the trial.court. It does not appear by the record taken altogether that the discretion in the matter was abused. No doubt the defendant would have been given an opportunity to answer the testimony if he had any answer to it. The question is
Error is ascribed also to the admission of testimony on behalf of the plaintiff to the effect that he lost $1,500 of profits by reason of being deprived of his net. If nothing else were shown, this would indeed, under the pleadings, constitute material error. The claim is not in the form of a demand for the reasonable value of the use of the net. There is no statement in the complaint about what such reasonable use would be worth. Neither are there stated any facts showing that the fishing business was profitable or that any gain would have resulted from the use of the net in its original form. The loss of profits is only a special damage where the case is founded upon tort.
“General damages are such as a party necessarily sustains from the wrong of which he complains, and*444 such as the law presumes would inevitably result from the act or omission of the adverse party causing the injury, and are recoverable under an averment in the complaint of plaintiff’s pecuniary loss, without stating their particular nature. * * Special damages, however, do not necessarily result from the wrongful act or omission of the adverse party, but are such as may flow from them as a natural and proximate consequence, caused by his negligence or design; and, as the law does not presume that such an effect will inevitably follow, it is incumbent upon the plaintiff to allege specifically in the complaint the facts constituting his special damages, in order that the adverse party may have notice thereof, and be prepared for trial.” Dose v. Tooze, 37 Or. 13, 16 (60 Pac. 380).
From the allegation of the destruction of the plaintiff’s property, the law at once infers general damages, but we cannot draw from such an averment the conclusion that there was any loss of profits. From time immemorial, the business of fishing has been uncertain and variable in its results. Men have fished all nig’ht and caught nothing and in the morning have gathered abundantly and miraculously from the products of the sea. So in this case, if the plaintiff would recover for loss of profits, he must allege the grounds thereof as a basis of special damages. Iiis averments on that score must be such as to enable the court to draw therefrom the legal conclusion that loss of profit was the actual result of the tortious acts of the defendant. As before, if nothing else were shown in the record, the admission of the testimony relating to the loss of profits would constitute material error; but when the court came to charge the jnry, the matters of profits and of punitive damages were both withdrawn from the consideration of the jury on the ground that the testimony was too
As to the colloquy between the court and counsel relating to the charge alluding to counsel by name and saying that he would not probably argue the law to the jury hereafter, we cannot conceive that material error can be based upon such a showing. In the first place, the record is devoid of any statement of what counsel had said to the jury. For aught that appears, in the zeal of argument he may have said something well deserving the comment of the court in the charge. The statement to him when the exception was allowed, that hereafter he would probably not argue the law to the jury was really a tribute to his ability as a lawyer and a legitimate intimation that in the present instance he had unintentionally overstepped the bounds of his duty as an advocate and that in his own sense of propriety he would not repeat it. In almost every trial, the presiding judge is called upon to reject the contentions of counsel on one side or the other as to the law affecting the case. If error is to be predicated of this, the statement of counsel which had been criticised should appear in the record so that we may determine whether the rejection or criticism of the court was legally just or not.
Other errors were assigned but were not argued and hence will not be given attention here. On the whole case, the judgment should be affirmed, and it is so ordered. Affirmed.