Wray v. Spence

Opinion, Me. Justice Green: The defendant made no request for a binding instruction by the court to render a verdict in his favor, and therefore the third assignment of error cannot be sustained. The refusal of the court to enter a compulsory nonsuit cannot be assigned for error, and therefore the second assignment is not sustained. This leaves only the first assignment to be considered. It was for the refusal of the court below to strike out the testimony of the witness Daniel McKenna. The witness had testified to having seen a son of the defendant Steiner taking away from the Wray mill some of the lumber m question. Other witnesses had testified to acts of ■intervention by Steiner in the sawing of the lumber by the [403] plaintiffs’ intestate. The witness John A. Small had testified that he did the sawing for Mr. Wray, who owned the mill, and had kept the account of the lumber sawed; and that Steiner had come to the mill while he was sawing the lumber in question, and had given him directions as to how the lumber should be sawed. He said: “ Steiner came on to the mill a few days after I started, and told me he wanted the good oak logs sawed into studding, and the bad stuff put into streamers, and the good lumber he wanted boat lining.” On cross-examination he testified further on the same subject. A witness named Fitzgerald had testified that he did some work for Steiner on the lumber that was sawed there, and that Steiner had paid him for it, and it was in 1882. He rafted some lumber for him from the Wray mill. Peter Knight had testified that Steiner had told him to haul the logs to the mill and let him have some feed for that purpose, and that he also got goods from Steiner & Bartlett’s store on orders from Spence. After this witness was examined, McKenna was called, and testified that he saw Steiner’s son taking away some of the lumber from the mill. He said: “ There were boats built there at Trout-man, and there was som¿ lumber run down to Gravel Lick. Q. Who was handling it? A. Who was taking it away? Q. Yes. A. Mr. Steiner’s son and a couple of boys; anda man along I don’t recollect.” He said, also, the boy was doing business for his father, as he understood. The foregoing testimony being in the case, the defendant’s counsel moved to strike out the testimony of the witness Mc-Kenna. The court declined to do this, because it was some evidence upon the question as to what Steiner had to do with the logs. We can see no error in this. The testimony was relevant to the main question. It was entirely competent, and taken in connection with other evidence, it was fairly for the consideration of the jury. If Steiner’s son took away some of the lumber from the mill, it was some evidence that he did it for his father. If he did not, he could be called by the defendant to disprove any authority from him to take away the lumber. A question of fact only was raised by the testimony. The fact had some bearing upon the main question, and therefore it was proper to be considered by the jury. Of course, standing alone without other evidence, it would have been very [404] weak; but, in connection with other evidence tending to connect Steiner with the lumber, it was entitled to some weight. The case has been discussed for the defendant on its general merits, and it has been earnestly contended that on all the evidence no liability was established against the defendant. But the merits of the case are not before us. They have been determined by the verdict against the defendant, and there is no assignment of error which brings them before us. The jury having determined, under a very fair and impartial charge, that the defendant Steiner was jointly interested with' Spence in having the logs sawed, we must assume that they have correctly so found; and, that being so, the evidence of McKenna as to the action of Steiner’s son is corroborative of the main fact. We see no error in the action of the court refusing to strike out McKenna’s testimony. Judgment affirmed.