Croze v. St. Mary's Canal Mineral Land Co.

Grant, C. J. A sufficient statement of the facts in this case is found in the opinion of this court (143 Mich. 514) reversing the judgment and remanding it for a new trial. The original declaration, as stated in that opinion, contained two counts, one being the ordinary count in trover, the other a special count in trover alleging that the defendant wrongfully converted the timber to its own use by unlawfully and wrongfully removing it from the places where seized. This part of the declaration is as follows: “ And the plaintiff avers that the said Will C. Baudin did not pay to the said defendant said sum of $4,480 and interest thereon at seven per cent, per annum, as in said mortgage agreed and that thereafter and on to wit, the first day of September, 1901, the said defendant by its agents and servants seized and took possession of the entire quantity of logs and timber aforesaid belonging to said Will C. Baudin, including the 1,000,000 feet thereof aforesaid, which was owned by the said Baudin and not included in the terms and provisions of said chattel mortgage or affected thereby, and also seized and took possession of said 1,000,000 feet referred to in said chattel mortgage as having been sold to the Tamarack Mining Company. And the plaintiff avers that the said defendant did not then and there or at any time thereafter sell that portion thereof which was mortgaged to said defendant, at public auction after a like notice as is -required by law for constable’s sale nor did it exercise its option to sell the same at private sale without notice, as in said mortgage agreed, but unlawfully and wrongfully removed or caused to be removed a greater portion thereof, to wit, 2,500,000 feet of said hemlock logs, and to wit, 30,000 feet of said white pine logs, and to wit, 60,000 lineal feet of flat hemlock timber from the place and places where the said logs were seized and taken by said defendant and wrongfully and unlawfully converted the same to the use of the said defendant.” The special count also alleges a damage to the timber left upon the shore at Misc.y Bay by reason of its “becoming sap rotten, sap stained, wormeaten and discolored,” — 366 — and that such injury was due to the carelessness, negligence, and wrongful conduct of the defendant in not caring for and protecting said logs. Aside from the allegations of damage to the logs left upon the bank at Misc.y Bay, the declaration was based entirely upon a conversion . of the property by moving it from the places where seized -and neglecting to sell the same according to the provisions of the mortgage to satisfy the debt. Upon the second trial no claim was made for damages to the logs left at Misc.y Bay. We held in the former opinion that there was no conversion. There was not even a hint in the original declaration of liability for negligence in rafting and towing the logs from Misc.y Bay to Portage Lake, or in their care in Portage Lake. In fact most of the logs were already in Portage Lake, having been towed there during the season in several rafts by plaintiff’s assignor, Baudin. After the former decision plaintiff asked and obtained leave to amend his declaration charging the defendant with negligence in towing the logs and in their care while in Portage Lake, alleging that the boom in Portage Lake broke on two or three occasions by which logs were lost, and that the breaking was due to the negligence of the defendant. Since writing th6 above this court has decided Jones v. Pendleton, 151 Mich. 442. The original declaration in that case counted on a promise made by the defendant to pay plaintiff a commission on the sale of real estate. The plaintiff did not make the sale, but the sale was made through the intervention of another party. It was held that, although there was testimony tending to show that defendant told plaintiff that he should have his commission, though another party should effect the sale, he could not recover. Jones v. Pendleton, 134 Mich. 460. Plaintiff then amended his declaration so as to include the promise that he should have the same commission though another party effected the sale. It is stated in the prevailing opinion in that case: — 367 — “ The plaintiff has but one cause of action. He failed to properly describe it. The question is, whether the court has power to permit plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought suit, but which he failed to properly describe in his declaration.” That is not the situation in this case. Here the plaintiff deliberately in his original declaration set forth his right of action to be a conversion of the timber by violating the terms of a chattel mortgage. No other cause of action is even hinted at, except as to some logs left at Misc.y Bay. It contains no hint of negligence in towing or booming or care. In Jones v. Pendleton a commission was the sole cause of action. The plaintiff improperly described it. In this case the original and amended declarations described two absolutely independent causes of action, bearing no relation whatever to each other. The original says that defendant took and converted plaintiff’s property because he had not complied with the terms of the chattel mortgage under which defendant seized it. The amended declaration says that defendant was negligent in handling and caring for the property after it had lawfully acquired possession. I think the case is clearly distinguishable from that of Jones v. Pendleton, and that this amendment was not permissible under the statute or any decisions of this court. I do not think that an action of trover for the conversion of property can, under the statute of amendments, be transformed into an action of negligence in the care of it. In the former case plaintiff is entitled to recover the value of the entire property, and in the latter only what damage has been done to the property. It is not sufficient that the parties be the same. They are always the' saíne in cases of amendment. It is not sufficient that the property be the same. Usually the property is the same. In this case the property is not the same. In the trover case the declaration asserts that defendant converted to its own use the entire of the property. — 368 — In the second case plaintiff asserts there was no conversion, but that the defendant lost a part of the property through its negligence, and for that part only must it pay damages, and that upon a cause of action to which no reference is made in the original declaration. 2. I think there was no evidence of any negligence in booming the logs in Portage Lake, a narrow, land-locked harbor. It was a safe and proper place. Baudin and plaintiff had hooms of some of these same logs there, which broke up before they were changed into the booms of the defendant. Their own witness testified: “ I think there were two batches of logs down there in Portage Lake, one somewhere near the Union Brewery on this side, and the other somewhere near the Hancock Pump House, a little above Griff’s mill. They were left there until, I think, they broke up, some time in November. I didn’t intend to disturb them at all, but they broke up, and I suggested that we bring them all down here and put them near the Isle Royale mill. Those rafts that were here in Portage Lake were in the condition in which they were found up to the time they broke up. We didn’t disturb them at all. We didn’t open one of them. They were not combined with the lot we brought down at the time. The first I knew about their breaking up was, I guess, from Mr. Nichols or somebody. I suggested to Mr. Goodell and Mr. Parnall that we take them and tow them down below the bridge and put them all in one lot, and lay them in back of Isle Royale there, somewhere, for the winter. I think we picked the logs up twice. We picked them up that fall. I superintended that work and ordered it done.” Several rafts — six in number according to plaintiff’s own testimony — had been towed from Misc.y Bay to Portage Lake by plaintiff, who was employed by Baudin, and there tied up. There is no claim that they were not stored in a safe place, or that the boom was not properly constructed. The evidence of plaintiff is that it was one of the best booms in use. Plaintiff’s own witness (Moore) testified that they were the best booms on the lake with the exception of the Nestor estate lake booms. There is — 369 — no evidence that the booms used by the defendant were not sound, properly constructed and such as were in common use. The only evidence that is or can be relied upon to show negligence is the fact that the booms broke perhaps on three occasions. It is urged that this breakage was so frequent as to justify the inference that it was an improper boom. Two of plaintiff’s booms towed by his own tugs from Misc.y Bay were fastened to the shore above the Portage Lake bridge. Both these broke loose in November, and the logs so far as possible were picked np by the defendant as soon as the breaking was discovered. Would this have been sufficient to justify the jury in finding that plaintiff’s booms were in bad condition or improperly constructed ? In determining this question we must refer quite fully to the testimony. One Vaudrin testified that late in the fall of 1901 he saw a raft break loose and saw a gang of men at the bridge picking up logs. There is no testimony to show whether these logs came from one of plaintiff’s booms which had broken up, or from one of the defendant’s booms. This same witness testified that at some time — he did not say when —he saw a number of logs around Portage Lake; that some farmers hauled them up and sawed them up for wood, but he does not give any idea as to the number. Whether these came from the booms of plaintiff or of defendant there is not a scintilla of evidence to show. Plaintiff testified that defendant took out his boom and put in its own; that the logs broke loose two or three times during that fall and the next spring. But plaintiff does not testify that these logs that broke loose in the fall did not come from his own booms which were tied to the shore of Portage Lake as above stated, and which it is conceded did break loose some time in November. It appears that plaintiff brought replevin for at least parts of his own booms. The only reliable testimony is that of plaintiff’s witness Moore. This witness testified that after the logs were — 370 — stored along the shore between Snow Shoe Island and the Clubhouse— “Nothing happened to the logs until next spring. There was a chain let loose in the spring. I got Mr. Croze’s tugs — one or two of them — and surrounded them. I happened to see them going away, and happened to be lucky to get one of Mr. Croze’s tugs, and ran a boom around them and surrounded them. That was in the spring of 1902. Nothing happened to the logs during the winter and up to the opening of navigation. There was no loss during that period. We didn’t lose any logs in towing them down there from where they were first put. There may have been a stray log lost out, but nothing more than what would be usual in towing hemlock logs. “In the spring of 1902 the logs were taken out and sorted. There was no loss of logs during that time up to the time they were sorted. * * * “ After the logs were sorted, the Tamarack logs were taken up to Dollar Bay; the Canal Company’s logs were taken in back of Snow Shoe Island, between Snow Shoe Island and the shore. That is a protected place. I don’t think in the towing and sorting, in taking them to the place for sorting and putting back, there was any loss of logs or timber, any more than what is usual. A log will slip out of the boom, or logs will crawl out between and over the boom chains occasionally. * * * They broke up again. I ain’t sure but we did finally tow them up through Portage Lake again for the Canal Company. They had been moved from behind Snow Shoe Island before they broke up. * * * “ When they broke up they laid up here by the Copper Range Railroad landing. When the boom broke they notified me, and I got a tug and men there again to pick them up. The work of picking them up was done quite thoroughly. I think they got all. There might have been a stray log got away from us somewhere. We left them there in the boom again, and I think they broke again. I helped pick them up again, and we picked up until we were satisfied that we got them all, and they were put back in the boom again.” On cross-examination he testified: “ The booms broke some, a matter of two or three times, I guess. We picked up everything as far as we could.” — 371 — It appears from the plaintiff’s evidence that the breaking of rafts is not uncommon. Plaintiff’s assignor, Baudin, testified that two of his rafts from Misc.y Bay to Portage Lake ‘ ‘ broke up ” and the logs went mainly upon the shore. It is admitted that a percentage of logs is lost out of every raft, even in smooth weather. Out of the 4,600 logs above mentioned, called the beach logs, plaintiff’s own evidence shows that at least 25 per cent, of them were logs belonging to other parties and which had escaped from booms being rafted over the lake. Under these circumstances we do not think the law justifies the conclusion that the defendant was guilty of using insufficient or improperly constructed booms. Whether boats passing up and down accidentally ran into the boom, whether some unexpected pressure by storm or otherwise had been brought to bear upon it, or whether some evil-disposed persons had broken it, no one can tell or attempts to tell. Defendant put in no testimony, and the case is determinable upon the plaintiff’s own evidence. This boom lay in the waters of Portage Lake and was at any time subject to the examination of the plaintiff or anyone in his behalf. Its age and construction could easily have been ascertained. I cannot conceive of a more appropriate case for the application of the well-established rule that an accident of itself is no proof of negligence. The mere fact that the boom broke is not, in my opinion, evidence of negligence, any more than was the fact that a timber broke in the case of Quincy Mining Co. v. Kitts, 42 Mich. 34; or that a boiler front fell, as in Toomey v. Steel Works, 89 Mich. 249; or that a piece of machinery gave way, as in Robinson v. Wright & Co., 94 Mich. 283. Both the defendant and the Tamarack Mining Company (the latter owning a large proportion of the timber) were as interested in properly securing and caring for it as was either the plaintiff or his assignor, Baudin, who was pecuniarily irresponsible. Their own large interests — 372 — would prompt them to proper care and diligence. There must be some tangible evidence of wrong, but there is nothing, except the bare fact that on two or three occasions the boom broke, to indicate any wrong. 3. The case was submitted to the jury upon another theory, viz., that the defendant had sold more of the mortgaged logs than was sufficient to pay the mortgage debt. Upon this point the court instructed the jury: “If you find that the defendant company could have sold just enough to satisfy the amount of the mortgage and reasonable expenses, and that it did sell more than enough, then you could render a verdict in favor of the plaintiff for the value of the property which you have found was sold in excess of the necessary amount.” The mortgage authorized a public or private sale. The first sale made amounted to $5,300. I find no complaint made as to the price obtained at this sale, or the second sale. There was then due on the mortgage $4,950.40, Baudin having paid nothing. There had been paid for liens $983.02; sheriff’s fees, $57.15; the expense of sorting, scaling, etc., was $257.64; rent of booms was $440. The towing bills for delivering logs after sorting were $363.50, making the amount due, $7,051.71. These items did not include the cost of towing the two rafts from Misc.y Bay to Portage Lake, which, according to plaintiff’s own testimony, as to his charges for towing, could not be less than $700 or $800. The court instructed the jury that there was no claim that the first sale was sufficient to cover the amount due. Subsequently sales were made amounting to $2,413.43, making the total sales $7,713.43. Under this condition of affairs, I think it was error to submit to the jury the question whether the defendant had sold more logs than it was entitled to sell under its mortgage. I think the court should have instructed the jury that the defendant sold the logs in accordance with the terms of the mortgage and was not liable for the value of any timber in excess thereof. If, after deducting from the amount of the sales all these legitimate expenses, to — 373 — gether with the mortgage debt and interest, any surplus was left, defendant was responsible only for such surplus. It was very small in any event, and it is doubtful if there was any. The law does not require that the defendant should have sold these logs one by one until it had realized enough to satisfy the mortgage. Such requirement would be impracticable and unreasonable. It was authorized to sell them in quantities, and so long as it acted reasonably and in good faith it was liable only for the surplus left in its hands. Stromberg v. Lindberg, 25 Minn. 513; Johnston & Son v. Robuck, 104 Iowa, 523. I find no evidence of bad faith or unreasonableness in the sales which defendant made. 4. The court was requested to instruct the jury that: “From the testimony of Baudin, plaintiff’s assignor, it appears that 4,600 logs, mentioned as having been left over from the year 1900, and which became a part of the mass of logs in 1901, being mingled with the new cut, were at the time of the alleged wrongs the property of the Tamarack Mining Company. They must, therefore, be eliminated from this case.” If these logs belonged to the Tamarack Mining Company, the defendant is not responsible either to plaintiff or his assignor therefor. The court instructed the jury that the million feet of logs covered by the Tamarack contract must be deducted from the total number taken, and for which the defendant would be liable. According to Baudin’s testimony, these 4,600 logs appear to have been as much the property of the Tamarack Mining Company as were the million feet specified in the Tamarack contract. Baudin upon this point testified as follows: “ The cut of the previous year was all sold to the Tamarack, and these 4,600 logs was a part of the contract of the year before. I was to get out another million feet the next year. These 4,600 logs had been sold to the Tamarack before this time, I think. I made the same kind of a contract that I had the second year. That was the ame kind of a contract. I had a contract of four million feet the first year, and the next year another additional mil — 374 — lion, and these 4,600 logs that I had then were a part of the first year’s contract that I did not deliver. The first year’s contract took the entire cut. It took everything that year, and the second year’s contract they only wanted the long timber. I had a different contract the first year. I have got it somewhere in my papers, — I haven’t got it here.” Under this evidence, it is at least doubtful whether Baudin had any interest in these logs. (See opinion on rehearing, 143 Mich. 521.) We refer to this as the question may arise on a new trial. 5. The only other ground of negligence upon which the plaintiff could recover was for towing the logs at an improper season of the year when storms were liable to arise. The first raft, containing about 600,000 feet, was towed in safety, the weather being good. The next raft, containing about a like amount, suffered some loss. The court instructed the jury that, under the evidence, there was no loss on the first raft, and that they could not allow a loss of more than 25 per cent, on the second raft. The vice of the instruction lies in the fact that there was no testimony to indicate what proportion of the lost logs belonged to the Tamarack Mining Company, for the loss of which the defendant was not liable. It cannot be presumed that the 25 per cent, loss included only the logs covered by the mortgage. As the court instructed the jury, Baudin was responsible for the intermingling, “and the logs of the Tamarack Mining Company were so intermingled with the logs covered in the mortgage that it was unreasonable to expect them to be separated or sorted at Misc.y Bay.” It was therefore essential to tow them to Portage Lake in order to sort them. I am unable to see how there was any data by which the jury could determine how many of the plaintiff’s logs were lost in that raft. They were in any event a very small part of those for which the plaintiff recovered a judgment. When the logs were sorted in Portage Lake, the scale showed that the Tamarack Mining Company owned 779,171 — 375 — feet, and that the logs covered by the mortgage amounted to 789,358 feet. If there was any testimony from which the jury might infer that the logs were mingled in this raft in the above proportion, there might be some data from which to estimate the loss for which the defendant was responsible. I am not prepared to say that this would not be proper, but as it is not argued it'is unnecessary to determine it. I think the judgment should be reversed and new trial granted.