Hayward v. Campbell ( 1888 )

Orton, J.

This action is to recover compensation from the defendants for driving their logs from Little Wolf riven* down the Wolf river to the boom of the Wolf Eiver Boom Company, on Wolf river,"which had become mingled and intermixed with the logs of the plaintiffs being there driven, by virtue of the provisions of sec. 3337, B. S. This section provides that when the logs or timber of different owners on the Wolf river or on any of its tributaries “are so intermixed that they cannot be conveniently separated for floating or driving them to the place of destination, and either owner, shall refuse or neglect to make the necessary provision or to furnish the necessary labor and materials for floating or driving the same to such place, any other owner may drive all such logs or timber to such place, and shall receive reasonable compensation for so driving,” etc. This statute evidently means that the owner shall make the necessary provision and furnish the necessary labor and materials for floating or driving his logs so intermixed with the logs of another after they are so intermixed and while they are floating or being driven with the logs of another. It does not mean that such owner shall make provision and furnish men and materials for driving his logs before they were intermixed or separately; and the complaint is that the defendant failed or neglected to make provision or to furnish necessary labor and materials for so driving them intermixed and in connection with the Jogs of the plaintiffs. I speak of this to show that the defendants, in their- answer, fail to meet this allegation of the complaint. - They deny that it was through their neglect to make the necessary provision and furnish the necessary materials for floating and driving their said logs from the place where they became intermingled to the place of their destination that the plaintiffs drove, or were necessarily obliged to drive, the same. This denial is consistent with the defendants’ not having made such provision and furnished such material, and' there is ho allegation that they did so make provision or furnish material. But, again, the denial that it was through their failure to make such provision or to furnish such material that the plaintiffs drove, or were obliged to drive, the same from the place where they became intermingled to the place of their destination, falls short of the material denial that it was through such neglect or failure to make provision or furnish material to drive said logs intermixed or together with the logs of the plaintiffs that the plaintiffs were obliged to so drive them so intermixed with their own logs. The denial is independent of this very condition that makes the issue, and, for aught it contains, may mean only that they deny that they failed to make provision or furnish material to drive their own logs in connection with their other logs, or in their own way, if the plaintiffs had not caused their intermixture with his logs, which they aver he did. The learned counsel of the appellants alleges as error that the court did not charge the jury in relation to the neglect or refusal of the defendants to so make provision or furnish labor and materials as a pertinent and material question in the case. ~We have seen that there was no such question, because there was no denial of such neglect, and no averment that the defendants did make' such provision or furnish such labor and materials. The allegation of the complaint in this respect was not denied, and was therefore admitted.

It is alleged as error that the court told the jury that “it -was not disputed that the plaintiff drove the defendants’ logs to the boom,” as alleged in the complaint. The allegation of the complaint is that the plaintiffs drove the defendants’ logs to the boom of the Wolf River Boom Company, and it was not denied in the answer, and it was said truly that it was not disputed. The distance of the drive was a matter to be considered by the jury in determining the amount of compensation, and that matter was very ¡fairly and fully submitted t.o the jury. That part of the charge in which the jury were instructed' that, “if these logs could not be conveniently separated, and the plaintiffs drove them to the boom, then they would be entitled to recover,” is assigned as error, because it omits the other material fact which the jury must find to entitle the plaintiffs to recover, namely, that the defendants neglected and refused to make provision and furnish labor or materials for driving said logs. That fact, as we have seen, was not in dispute, for it is not denied in the answer. There was no other question except this, and amount of compensation, upon which the evidence was not conclusive in favor of the plaintiffs. Upon this question the court stated to the jury that the plaintiffs’ testimony and that of their witnesses was that they could not be conveniently separated; and then the court stated further that there was no direct proof on the part of the defendants that they could be conveniently separated; and this last statement, and what the court said in connection with it about drawfing inferences from certain other facts and circumstances that they could be conveniently separated, are complained of as erroneous. There is nothing in these instructions that could possibly mislead the jury. The case was a very plain one on the evidence, and the instructions of the court were brief, clear, and correct, and we think that the evidence was sufficient to warrant the verdict.

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