Lincoln v. Taunton Copper Manufacturing Co.

Dewey, J. We perceive no ground for exceptions to the ruling of the court in the matters relating to the report of the majority of the auditors. The statute of limitations constituted no part of the defence, and their finding that the deterioration of the plaintiff’s land had not increased within six years did not raise any new issue, or affect the case, except as being a part of the facts bearing upon the general question whether the plaintiff’s land had been injured by the defendants by the causes set forth in the declaration. The court properly ruled that a separate and dissenting report made by one of the auditors was not admissible as evidence under the statute. There can be but one legitimate report on a reference of a case to auditors, and that is the report of the majority, upon a hearing by all the members. The fact will always appear from the report itself that it had not the concurrence of all the auditors, but it is nevertheless the report that is to be prima facie evidence upon the matters committed to them. Gen. Sts. c. 121, § 48. The second ground of exception is the rejection of the proposed inquiries put to Arnold and Woodward. As to the first branch of these inquiries, in the opinion of a majority of the court, the question proposed is not to be considered as an inquiry as to a physical fact, occurring in the presence and under the immediate observation of the witnesses at the time, but a mere statement of a general result or effect produced by the settling of scum on certain lands between the copper works and the plaintiff’s meadows. The witnesses were not offered as experts, and the admission of their evidence was not asked upon that ground. The localities' to which the questions referred were other lands than those of the plaintiff, and on this account are obnoxious to the objections which arise to the more extended course of inquiry proposed in reference to these witnesses, ana which we shall proceed to consider. — 187 — The proposition was to show the present condition of other meadows upon the Three Mile River, and in the vicinity of the defendants’ works. This general inquiry the court rejected, and ruled that the plaintiff could not offer any testimony as to any injury which was occasioned by the defendants’ works to any lands not belonging to the plaintiff, except so far as the evidence might come from experts. The question in issue was, whether the plaintiff’s land had been injured by the alleged torts of the defendants. To show this, the plaintiff was allowed the fullest inquiry as to the former and present state of his own land, the state of things at the defendants’ works, the creation thereby of noxious scums and gases, and to call experts, deriving their knowledge from experiments and observation, to testify as to the effect of these to the fullest extent. But in the opinion of the court, the plaintiff was not authorized to introduce evidence of similar alleged grievances suffered by owners of other lands. Such inquiries would present as many distinct issues as there were alleged cases, and would involve questions of fact equally difficult and extended with those which would arise in the particular case of the plaintiff The effect would be, if such evidence was admissible, that the defendants must be prepared to go into a full hearing of any alleged injury attributed to this mill caused to all the lands bordering on the river. How would this advance the inquiry in the present case ? If the purpose was, as was stated by the plaintiff, to show that the ingredients in the water from the defendants’ works settling on the land, and the gases from the chimney, injured vegetation and the soil, why not have shown it by proof of its effect upon the plaintiff’s land ? If such effect has been produced here, it establishes the fact, and needs no inference from what has been done in other localities, and avoids not only the unlimited inquiry as to its effect upon other lands, but the farther inquiry as to the similarity of soil and exposure of such lands, and also the effect of their greater proximity to the works. We see no sufficient practical advantage from this unlimited inquiry as to the past and present condition of other meadows while we can see that it might greatly — 188 — multiply the issues, so that the case very possibly might be tried much more upon the evidence of injuries which the defendants had caused to others than upon the evidence applicable to the plaintiff’s case. In the rejection of this testimony, the court seems but to have followed the decision of this court in the recent case of Emerson v. Lowell Gas Light Co. 3 Allen, 410. That was an action of tort for an alleged injury to the plaintiff’s health from the inhalation of gas which escaped from the defendants’ works through the negligence of their servants; and, for the purpose of showing that the inhalation of gas was noxious/ and that its effect was to produce sickness, it was proposed to show in evidence that a large number of houses in the neighborhood, the drains of which were connected with the sewers, were filled with gas, and especially to show that it entered the house adjoining and back of the plaintiff’s house, and that wherever the gas entered sickness followed; but the court rejected the evidence as incompetent. In the opinion delivered in that case, it was said: “ Each separate and individual case must stand upon, and be decided by, the evidence partieulárly applicable to it. ... If such evidence was admissible, the issues in a single cause might be' indefinitely multiplied; and this would tend only to confusion, and to mislead the jury. . . . The plaintiffs could not establish or strengthen the evidence in their own case by any proof' concerning the condition of, or the injuries received by, another person.” It was upon the same principle that this court, in an action against a town for an injury occasioned by a defect in the highway, affirmed the ruling of the court of common pleas, Holding evidence not admissible on the part of the plaintiff, for the purpose of proving the existence of such defect, that another person before the injury complained of received a similar injury at the same place and from the same alleged defect without any negligence on his part, as it would raise a collateral issue, and result in testing one point in dispute by another. Collins v. Dorchester, 6 Cush. 396. So also on a question of damages by the location of a railroad — 189 — it was held that a witness was incompetent to testify aa to inconveniences which he has suffered on his farm by the ordinary running of railroad cars, for the purpose of showing the inconveniences suffered by one owning a farm in that vicinity, as such evidence would raise an issue collateral to that on trial. The court said: “ The case itself must be tried by the facto which actually take place, and not by those which transpire in other favorable cases.” Concord Railroad v. Greely, 3 Fost. (N. H.) 237. The proposed testimony of Crane as to the state of the meadows on Rumford River, and that they had not deteriorated, was properly rejected for similar reasons. It was also subject to the objection of being evidence as to land situated on another river. It is objected that this view of the law is in conflict with certain earlier decisions of this court, found in the cases of Bradford v. Boylston Ins. Co. 11 Pick. 165, and Standish v. Washburn, 21 Pick. 237. It becomes necessary to recur to those cases to consider whether the inconsistency supposed is apparent or real, and, if the latter, which is in principle the sounder exposition and the one to be applied to the present case. In the case of Bradford v. Boylston Ins. Co. the plaintiff claimed to recover damages on a policy of insurance upon certain bales of blankets shipped on board the Aspasia at Liverpool, to be conveyed to New York; and he contended that, owing to tempests on the voyage, the salt water found access to the goods and damaged them, and offered evidence tending to prove these allegations. The defendants contended that the damage arose from some defect in the manufacture of the blankets, or from their having been fraudulently packed in a wet state for the purpose of increasing their weight. The defendants were allowed to offer in evidence the testimony of one Russell, that during the year 1828 he imported certain bales of blankets manufactured by Wood, (the same person who manufactured the plaintiff's blankets,) which proved to be damaged, and in his opinion by being packed in a wet state for the pur= pose of increasing their weight; also the testimony of one Leea — 190 — that he received a consignment of blankets from "Wood in three different vessels, that were all damaged on the inside, the outside of the bales being dry, and that the damage of the blankets of the plaintiff was of a similar character and of a peculiar kind, and not like that produced by salt water. This certainly was a liberal admission of other independent matters in which' the plaintiff had no concern, for aught that appears not confining the defendants to other sales made at the same time, but embracing the whole year, and requiring the plaintiff to meet the issue whether these goods imported by other persons were really and truly Wood’s manufacture, whether they were not also subject to the effects of a storm on the passage, or other exposure, and whether the damage to them was similar to that suffered by the plaintiff in his bales. We can hardly perceive how so extended an inquiry could have been allowed, ;nvolving so many distinct transactions, and why evidence of this character should have been held competent. We see that fraud on the part of the manufacturer was suggested by the defence, and this charge might have had its influence in leading to the admission of evidence of other transactions, although it would seem that the plaintiff had a right to insist on the exclusion of all inquiry into collateral natters, and that the fact of fraudulent conduct during the same year by the manufacturer of the goods sold to the plaintiff, in his transactions with others, was not competent evidence to prove the fact that the plaintiff’s bales of blankets had been fraudulently packed in a wet state to increase their weight. No particular case was cited by the counsel supporting its competency, and they merely referred to 2 Stark. Bv. 380, which states some general principles as to collateral evidence. The case of Standish v. Washburn, 21 Pick. 237, has much more of similitude, in the nature of the question raised, than the case we have been considering. It was not, however, the present case. It was not a case where the plaintiff proposed tc sustain his allegations of injury occasioned to his land by proof that others had sustained similar injuries, but the question was whether the defendant might not, in reply to the plaintiff’* — 191 — evidence tending to show an unfavorable change in the quantity and quality of the products of his land, and from which he asked the jury to infer that a change had taken place in the use of the defendant’s mill, prove by a witness whose land was not flowed, that similar changes had taken place in his land during the same period. All that was in fact decided by the full court in that case was, that the presiding judge did right in excluding such evidence, there being no proof that the land of the witness was similar to that of the plaintiff. Had such proof existed, the evidence proposed would have been admitted at the trial, and the correctness of that seems to be assumed by the court in the brief opinion stated by the reporter, although it became unnecessary to decide that point. Taking this case as one in which the court have held that the evidence would be competent, upon the additional proof that the meadows were similar, it would be an authority for the plaintiff to this extent — that a defendant may show the deterioration of another lot not exposed to the alleged causes of injury, by way of rebutting the inference that the plaintiff would draw from his proof of the deterioration of his own land, namely, that the mill of the defendants had caused it. Such a doctrine would seem to be inconsistent with the principles we have stated as to the multiplying of issues by the introduction of collateral inquiries calculated to withdraw the attention of the jury from the real issue to the consideration of other lands, their peculiar qualities of soil, their deterioration and the causes of it, and in fact to do just what this court said, in Collins v. Dorchester, should not be done, “ test one point in dispute by another.” It seems also to be at variance with the later decision in the case of Emerson v. Lowell Gas Light Co., to which we have already adverted. The remaining exception taken by the plaintiff is that as to the ruling of the presiding judge, permitting Professor Chace, who, in reply to Professor Horsford, and as an expert, had testified that in his opinion copper frequently exists in vegetation, to state in support of such opinion that he had made two experiments similar to those made by the plaintiff’s witness, Professor — 192 — Horsford, upon grasses procured elsewhere, and that he obtained copper in each instance. In the opinion of the court, this evidence was competent, in the case of one called as an expert. Keith v. Lothrop, 10 Cush 457. Collier v. Simpson, 5 C. & P. 73. Dickenson v. Fitchburgh, 13 Gray, 555. In the case of Ingledew v. Northern Railroad, 7 Gray, 91, an apparently different ruling was made; but we do not perceive that the case of Keith v. Lothrop was brought to the attention of the court, the volume containing it not having been then published. It-seems to us to be the better rule to admit such testimony in the case of an expert, at least to the statement of results. It will be perceived by the bill of exceptions that no restriction was placed upon the plaintiff as to any evidence that might come from experts. In the opinion of the court, all the exceptions are to be overruled, and judgment is to be entered upon the verdict for the defendants.