226 F. 849 | N.D. Cal. | 1914
The government brought this action to recover the value of a large quantity of timber cut from the public lands and alleged to have been converted to the use of defendant. The jury gave a verdict for the plaintiff, and the defendant now asks for a new trial.
There are several grounds assigned in the petition as involving error, but the only points upon which stress has been laid in tire presentation of the motion are two, involving the correctness of the charge of the court upon the subject of the measure of damages. It appearing that all the timber in question had been manufactured and sold before suit, the court.charged the jury as follows:
"If, under tbe principles I bave stated, you find that the defendant, or any of the corporations named, acting under his direction and control, knowingly and willfully cut and converted the timber mentioned in the complaint, or any part thereof, then the plaintiff is entitled to recover the market value of the timber so converted in whatever condition, it may have been at the time of its disposition or sale.
“If you find that the defendant, or any of the said corporations while acting under his direction and control, converted the timber mentioned in the complaint, or any part thereof, under the honest but mistaken belief that he or they had the right under the law to cut and remove such timber, then in assessing the damages you will fix the value of the saíne at the time of conversion less the amount which was added to its value before sale; in other words, if you find that timber was so cut and removed from lands of complainant and that there was added thereto certain value by reason of the manufacturing of said timber into lumber for the market, then the measure of damages will be the difference between the expenses incurred in the manufacturing of said lumber and the pride for which it was sold in the market.”
This feature of the charge gives rise to the first objection urged. It is contended that it is erroneous in that, first, the measure of damages when the taking is innocent is not the difference between the expense incurred in manufacturing the lumber and the price for which it is sold, but is the stumpage value only; and, second, that the instruc
“Next, os to tlie measure of damages. We except as to the measure suggested by the court. We claim that tlie only measure that can exist under the circumstances is the value of the stumpage in the tree, and I think your honor’s instructions add to it another element.”
It will be observed that the charge covers two alternative propositions, the first applicable to a willful taking, the second should it he found that it was unintentional or innocent. As to the first, no question is now made as to its propriety, the objection being aimed at the second, governing an innocent trespass. But there is nothing in the language of the exception that would indicate to the court whether it re [erred to the first rule stated or the second, and the court therefore could not know to which the objection was intended to apply. In its terms it would apply to one as readily as to- the other. But, moreover, if it may be said that the exception sufficiently indicates its application to the rule governing an innocent taking, it is wholly lacking in any suggestion that it was aimed at either of the defects now urged. It contains no intimation as to what improper element was claimed to he included; nor does it even remotely suggest the idea that the charge was, for any reason, deemed inapplicable to the facts. No question of procedure is better settled in these courts than that an exception to a charge, in order to entitle one to have it entertained, must he sufficiently distinct and specific to direct the attention of the court to the particular vice or error complained of, that the court may see whether the objection is well-founded and have an opportunity, before the iury retires, to correct the mistake, if one has been made. Thus in McDermott v. Severe, 202 U. S. 600, 610, 26 Sup. Ct. 709, 712, 713 (50 L. Ed. 1162), discussing an exception to the charge of the court on the question of damages, where, as here, the charge involved several distinct elements, it is said:
“The court’s attention was not called to any particular in which this charge, which covers a. number of elements of damages, was alleged to be wrong, only a general exception was taken to the charge, as given in this respect, it has been too frequently held to require the extended citation of cuses that an exception of this general character will not cover specific objections, which in fairness to the court ought to have been called to its attention, in order that, if necessary, it could correct or modify them. A number of the rules of damages laid down in this charge were unquestionably correct, to wliich no objection has been or could: be successfully made. In such cases it is the duty of the objecting party to point out specifically the part of the instructions regarded as erroneous. Baltimore & Potomac Ry. Co. v. Mackey, 157 U. S. 72, 80 [15 Sup. Ct. 491, 39 L. Ed. 624]. * * * It would lie very unfair to the trial court to keep such an objection in abeyance and urge it for tlie first time in an appellate tribunal.”
And again in Mobile, etc., Co. v. Jurey, 111 U. S. 584, 596, 4 Sup. Ct. 566, 572 (28 L. Ed. 527), where the charge embraced two several
“Conceding that the charge in respect to the rate of interest was erroneous, the judgment should not be reversed on account of the error. The charge contained at least two propositions: First, that the measure of damages was the value of the cotton in New Orleans, with interest from the time when the cotton should have been delivered; second, that the rate of interest should be 8 per cent. It is not disputed that the first proposition was correct. But the exception to the charge was general. It was therefore ineffectual. It should have pointed out to the court the precise part of the charge that was objected to. ‘The rule is that the matter of exception shall be so brought to the attention of the court, before the retirement of the jury to make up their verdict, as to enable the judge to corret any error if there be any in his instructions to them.’ Jacobson v. State, 65 Ala. 151.
“ ‘When an exception is reserved to a charge which contains two or more distinct or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection.’ South & North Alabama R. Co. v. Jones, 56 Ala. 507.
“So in Lincoln v. Claflin, 7 Wall. 132 [19 L. Ed. 106], this court said: ‘It is possible the court erred in its charge upon the subject of damages in directing the jury to add interest to the value of the goods. * * * But the error, if it be one, cannot be taken advantage of by the defendants, for they took no exception to the charge on that ground. The charge is inserted at length in the bill. * * * It embraces several distinct propositions, and a general exception cannot avail the party if any one of them is correct.’ On these authorities we are of opinion that the ground of error under consideration was not well saved by the bill of exceptions.”
The same principles are átated by Judge Morrow, speaking for the Court of Appeals for this Circuit in Montana Mining Co., v. St. Louis M. & M. Co., 147 Fed. 897, 909, 78 C. C. A. 33, and by Judge Gilbert in Butte, etc., Mining Co. v. Montana, etc., Co., 121 Fed. 524, 528, 58 C. C. A. 634. See, also, Springer, etc., Co. v. Falk, 59 Fed. 707, 8 C. C. A. 224; Stewart v. Morris, 96 Fed. 703, 37 C. C. A. 562; Porter v. Buckley, 147 Fed. 140, 78 C. C. A. 138; Coney Island Co. v. Dennan, 149 Fed. 687, 79 C. C. A. 375; Central, etc., Ry. Co. v. Mansfield, 169 Fed. 614, 95 C. C. A. 142; Beiseker v. Moore, 174 Fed. 368, 98 C. C. A. 272.
Within the principles of these cases, it would seem to be clear that the exception here taken to the feature of the charge under consideration is not such as to entitle the defendant to now urge the objections sought to be interposed.
“The question was whether the liability of the defendant should be measured by the value of the timber on the ground where it was cut, or at tne town where it was delivered. It was held that where the trespass is the re-*853 suit of inadvertence or mistake, anti the wrong was not intentional, the value of the property when first taken must govern; or, if the conversion sued for was ai'rei- value had been added to it by the work of the defendant, he should lie credited with this addition. Upon the other hand, if the trespass be willfully committed, the trespasser can obtain no credit for the labor expended «poii it, and is liable for its fall value when seized; and if the defendant purchase it in its then condition, with no notice that it belonged to the United Ututos, and with no intention to do wrong, he must respond by the same rula of damages as his vendor -would, if he had been sued. * * The eases invoking il'is distinction and in line with the Woodenware Cane are abundant, both in Hie federal and state courts, and are too numerous even for citation.”
The principles there stated will be found reflected in their substantive effect in the language of the charge given, which, although differing in phraseology to conform with the facts of the case, states essentially the same rule. Counsel says that the charge is erroneous because, in effect, it directs the jury to deduct from the selling price of che lumber the cost of manufacture and bring in a verdict for the difference, thus giving the plainiiff the benefit of any profit upon the business of manufacturing and selling the lumber, whereas it was only entitled, if the taking was other than willful, to the value before manufacture. If the language will bear this construction, which is not conceded, there is a principle running through all the cases, sometimes implied rather than expressed, which the contention ignores, and that is that one committing a trespass by converting another’s property, although innocently, is not entitled to reap a profit on the transaction. If the trespasser in such a case is permitted to retain all that he has expended in enhancing the value of the converted property, he is getting all the protection to which he is entitled. Thus in Winchester v. Craig, 33 Mich. 205, a leading case upon the subject, it is said:
"'File court raider one branch of the charge instructed the; jury to allow the market value at Detroit, or Toledo, less the sum of money which de-IVndann; expended in bringing- it to market. This, we think, was as favorable as the plainiiff had any right in this case to expect. This was allowing the plainiiff more than the value of the timber when It was first severed from the ready. It did not permit the defendants to recover any profit upon what they had done, but protected them to the extent of the advances they had made; and this, we think, was correct.”
Sec, also, Trustees of Dartmouth College v. International Paper Co. (C. C.) 132 Ted. 92.
\s to the point that the instruction was inapplicable to the facts of the case, I deem it sufficiently answered by the record.
“In txing the amount of any verdict you may find for the plaintiff, you should include interest on the value of any lumber so converted from the (late of such conversion to the present time. * * * The rate of interest is the legal rate of 7 per cent.”
The exception reserved to this portion of the charge was in these words, “I also except to your honor’s instructions with regard to interest.”
It is obvious, I think, that this exception is insufficient within the principles of tlie cases above cited, and particularly Mobile, etc., Co
In view of this conclusion, it would subserve no useful purpose to discuss definitely the question strongly mooted between counsel whether the objection now urged, if properly raised, would be well taken. It may be suggested that, while the question seems left in spme doubt and difference in the federal courts, whether interest in the absence of statutory sanction is allowable as a matter of right, the rule of the charge is the generally prevailing one (Sedgwick’s Elements of Damages [2d Ed.] p. 137; 1 Sedgwick on Damages, 631; Joyce on Damages, vol. 2, p. 1261, § 1105; Sutherland on Damages, vol. 2, p. 969, § 355), and is that prescribed by statute in this and most of the other states. These suggestions are made merely to illustrate that the question in controversy is a close one, and the case therefore essentially one where the exception should have been such as to specifically direct the attention of the court to the precise objection intended to be raised.
At," to the point made that the evidence was insufficient to justify the, verdict, I am satisfied that a reading of the record will disclose ¡hat vhis is without substantial merit.
These are all the points made, and I find nothing- in them to warrant the court in granting a new trial.
The motion is, accordingly, denied.