Orange County Fruit Exchange v. Hubbell

MILLS, C. J. This is an action of trespass, begun in the district court of Bernalillo county on the sixth day of July, 1896. The declaration alleges that on the seventh day of April, 1896, the defendant converted to his own use a car load of oranges, of the value qf $1,000, the property, goods and chattels of plaintiff, and prays judgment for $1,200. No exemplary damages are'claimed. The defense is the general issue. A jury was waived and the cause was tried by the court, who gave judgment for the appellee, the plaintiff below, for the sum of $586.35. Eight errors are assigned by the appellant. The first five of which relate to the rulings of the court in sustaining objections to the admission of certain evidence; the sixth and seventh assignments raise the question of the sufficiency of the evidence to warrant a judgment for the plaintiff, and the eighth seeks to attack the legality of the judgment of the trial court under its findings. From the consideration of the record, which is not voluminous, it will be observed that exceptions as to the admissibility of evidence, all relate to the rulings of the court on the cross-examination of the witness, McKinley, wlm was called by the plaintiff. We have carefully examined the several objections to the admission of the evidence. The first relates to the amount of the paid-up capital of the Orange County Fruit Exchange, and by the last the attorney for the appellant seeks to ascertain whether or not there was an agreement among the subordinate fruit exchanges in California that no schedule of prices or quotations of prices should be issued by them. The other objections, as shown by the record, are as follows: The witness having sworn on direct examination that the oranges belonged to the appellee: (Q.) Do you know to what particular person they belonged at the time they were shipped through,the medium of this exchange? The plaintiff objects, and the court sustains the objection, and defendant duly excepts. (Q.) What is the relation of the growers to this organization, on which you base your opinion as to the ownership of the property in dispute by the plaintiff? The plaintiff objects. The court sustains the objection, and defendant duly excepts. (Q.) When or how did the plaintiff become the owner of this car of oranges? (The court) Objection is sustained to that Mr. McMillen; defendant excepts. These are all of the objections saved, and we do not find reversible error in these rulings. ^ross-'exami’na-oi°court.creti011 It is a rule of very general application, that the extent to which a witness may be cross-examined is ordinarily a matter of discretion with the presiding judge to which no exception lies. Brumagin v. Bradshaw, 39 Cal. 24; Thornton v. Hoop, 36 Cal. 223; Stewart v. People, 23 Mich. 63, and unless there is manifest abuse of such discretion, the higher court will not reverse the ruling of the trial court on cross-examination. 8th Encycl. Plead. & Prac. 110; Spear v. Sweeney, 88 Wis. 545. “It is enough to say that upon the cross-examination much must be left to the discretion of the judge.” Steene v. Rylesworth, 18 Conn. 253. Some courts go so far as to hold that “when the court sustains an objection to a question asked on cross-examination, and the party has the opportunity to call the witness and ask the question on examination-in-chief, the exclusion of the question will not be considered harmful error.” Bonnet v. Glatfeldt, 11 N. E. Rep. (Ill.) 250. We do not, however, at the present time, lay down this doctrine as the law of this Territory. Bn* of lading: title to goods conveyed by. As to the sixth and seventh assignments, it is true that the bill of lading offered in .evidence shows that the carload of oranges were consigned to the Southern California Fruit Exchange, and it is also true that in law a bill of lading vests the ownership of the goods shipped in the consignee, unless the contrary is shown, either in the bill of lading itself, or by some extrinsic evidence. The Sally Magee, 3 Wall. 457. At the time the carload of oranges, the value of which are in controversy in this case, were attached as the property of the Southern California Fruit Exchange, (reported in 54 Pacific 345) notice was given to the appellant herein, by a telegram from that company that they were not their property, but belonged to the Orange County Fruit Exchange, and this latter company gave notice by wire that they would sue for their value if they were taken on attachment, and the railroad company, which was transporting them to their destination, also informed the appellants, in writing, that they had been “informed by the Southern California Fruit Exchange that they were not the owners of the oranges which you have attached, the same being the property of the Orange County Fruit Exchange.” On the trial, the witness, McKinley, on direct examination, testified that the oranges were the property of and belonged to the Orange County Fruit Exchange. This testimony is not contradicted, and is ample evidence to show who was the real owner of the fruit, and to controvert the prima facie proof made by the bill of lading. There can in any event be no doubt but that the evidence shows that the plaintiff had a special ownership in the property, which would authorize it to sue a trespasser. It has been so often decided by this court that the findings of fact of a master or referee will not be disturbed by this court unless it is manifestly wrong that it is stare decisis, and we have held at the present term that the findings of fact of a court, which tries a case, without the intervention of a jury, is entitled to as much, if not more consideration, than the findings of a master or referee. Marcos C. de Baca et al. v. Pueblo of Santa Domingo, 60 Pac. Rep., p. 73. This leaves us only the eighth assignment of error to consider. The appellant contends that the court having ruled that the measure of damages was the amount for which the goods sold at sheriff’s sale at Albuquerque, to wit; $520.00, erred in giving judgment for that sum, with interest, as the evidence showed that the defendant (the appellant) had paid the railway company for freight $272.14, which was owing, out of the money he received from such sale, and that the difference between the freight and the sum for which the oranges sold, or $247.86, and interest, should be the amount of the judgment, if any at all was given. As heretofore stated, the complaint shows that no special damages are claimed,' and where special damages are not claimed the general rule of law is that for the “destruction of personal property, so that the owner is wholly deprived of it, he is entitled to recover its value at the time of the trespass, and interest from that time.” This is the measure of damages for the entire loss of property. 5th Am. & Eng. Encyl. of Law, p. 39, and numerous cases cited. This court has changed this rule somewhat, and has decided in the case of Cunningham v. Sugar, 49th Pac. 910, that “in all civil actions, whether ex contractu or ex delicto * * * * the person injured shall receive a compensation commensurate with his loss or injury, and no more.” The value of the property in the nearest market is usually the measure of the plaintiff’s damage. Brown v. Allen, 35 Iowa 306; Coolidge v. Choate, 11 Metcalf 79; Starkey v. Kelley, 50 N. Y. 677; and it is held in an Indiana case, that where the property is sold by the trespasser, the plaintiff is not limited in his recovery to the amount for which it was sold. Smith v. Zent, 83 Ind. 86. There is nothing in the record to show that Albuquerque was a market, where carload lots of oranges could be sold at public auction, or that any had been previously so sold. M. P. Stamm, who attached the oranges in the original suit, and at whose instance they were sold, testified on cross-examination that he bought the oranges; that he started the bidding at $500, and that a man named Bacheci, who never bought any carload lots, bid $510; that he then bid $520, and got the lot; that no other bids were made at the sale, and that only one person- in Albuquerque besides himself ever shipped in carload lots of oranges. He further testified that he “did not get out even on them,” and therefore did not consider they were worth what he paid for them. On the other hand, the witness, McKinley, testified, that at the time of the sale the oranges were worth in Albuquerque $602.60, exclusive of freight. APHtaAtm prac-tloe: objection by appellee. We think that under the circumstances of this case, the court erred in holding that the measure of damages was what the oranges sold for at the sheriff’s sale. We rather think that the court should have been bound by the positive evidence . . , of the witness, McKinley, as to their value, and that under the evidence the judgment should have been for $602.60, instead of the amount for which it was given. The appellee, however, does not except to the amount of the judgment, and the appellant can not take advantage of it by exception and appeal even if it was erroneous, as the ruling was in his favor. Bethel v. Mathews, 13 Wall. 1. There is no reversible error, and the judgment of the court below is therefore affirmed. Parker'and McFie, JJ., concur. Leland, J., absent, and Crumpacker, J-., having tried the case below, did not participate in this decision.