Lemma v. Searle

The following opinion was filed February 18, 1913:

Marshall, J.

The questions presented for consideration do not meyit more than brief treatment — some hardly to be mentioned.

Some errors assigned go to the question of whether the findings of fact were warranted. It is sufficient to say in respect thereto that we are unable to see any good ground for holding any thereof to be contrary to the clear preponderance of the evidence.

Tbe point is made tliat the court erred in refusing to find the wood to have been wilfully burned. The finding that want of ordinary care was the proximate cause of the destruction, necessarily, negatives gross negligence.

The further point is made that the complaint was for gross negligence, — intentional destruction, — and that, without amendment, it would not support a judgment for damages caused by ordinary negligence. There seem to be several answers to that, rendering the authorities upon which counsel rely inapplicable. The charge in the complaint is very general. The pleader’s language is: “defendants, without the permission, knowledge, or consent of this plaintiff, and without any right or authority, destroyed and burned” plaintiff’s wood. That is quite ambiguous. It covers the circumstances of burning through ordinary negligence, burning through gross negligence, and intentional burning. There was no motion to make more definite and certain nor any motion for plaintiff to elect as to the theory of his case. In that situation the court below was right in reading out of the pleading any theory which the evidence would support entitling plaintiff to relief.

Complaint is made because the court approved of the taxing of $6.10 for drafting the report of the referee and making copies to keep and serve. There is no statutory authority for taxing such items, but the amount is too trifling to call for any further relief than a modification of the judgment.

By the Court. — The judgment appealed from is modified by reducing it to the extent of $6.10, and as modified affirmed with full costs in this court.

Vinje, J., took no part.

A motion for a rehearing was denied, with $25 costs, on April 8, 1918.