38 A.2d 829

LEWIS H. YOUNG v. MARION DOW, d/b/a NORTHERN LUMBER COMPANY.

No. 3478.Supreme Court of New Hampshire Strafford.
Decided June 26, 1944.

In an action for trespass, a verdict slightly in excess of the highest estimate placed by plaintiff’s expert witness on the value of timber cut on the plaintiff’s land will not be set aside as excessive where it appears that the witness made arbitrary assumptions in his computations which appreciably reduced his final estimate of total damage.

TRESPASS to recover damages for cutting and carrying away certain lumber and trees from the plaintiff’s close. Trial by jury. The cutting was admitted, and the issue of damages only was submitted

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to the jury. There was a verdict for the plaintiff in the sum of $1,075. The defendant seasonably moved to set aside the verdict upon the ground, among others, that it was excessive. To the denial of this motion and the order for judgment on the verdict, the defendant seasonably excepted.

Following the cutting, the plaintiff counted and measured 668 stumps and estimated that a total of 700 trees were cut. The plaintiff’s expert, Professor Woodward, testified that he had inspected the premises and, with the assistance of the plaintiff’s tally, estimated that one hundred thousand board feet were cut, having a value of $8 per thousand, or a total of $800. The defendant’s evidence tended to prove that the quantity cut was much less than one hundred thousand board feet and that the value was substantially less than $800. It was a contention of the defendant that there was no evidence to sustain a verdict for more than $800 and that the verdict should, accordingly, be set aside.

Charles F. Hartnett (by brief and orally), for the plaintiff.

Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the defendant.

BRANCH, J.

The only question submitted to the jury was the value of the timber cut. This was done with the full knowledge and consent of plaintiff’s counsel, and plaintiff’s belated exception to “the failure of the Court to submit the issue of additional loss to the plaintiff through inability to use the lumber for his own purposes” is, therefore, overruled.

The only proposition seriously argued by the defendant in this Court was that $800 “was the largest value which could possibly be assigned upon any evidence in the case.” It is true that this was the highest estimate placed by any witness upon the value of the timber cut. The witness testified, however, that all his computations were intentionally “conservative” and this conservatism apparently led the witness to make two arbitrary assumptions in his computation, which appreciably reduced his final estimate of total damage.

In the first place the witness based his calculation of quantity upon a yield table for white pine growth in New England which indicates that an acre fully stocked with sixty-year-old trees such as were involved in this case, yields on an average sixty thousand feet

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of lumber. The witness, as a result of personal inspection, testified that the lot in question was approximately one-quarter stocked, and continued as follows: “So I cut that and cutting it from sixty thousand to ten thousand as an average was amply conservative. Q. In this instance then your figure would normally be one-quarter of sixty thousand? A. That is right, or fifteen thousand. Q. In this instance, in order to be conservative, you used one-sixth? A. Yes, sir.”

In the second place, the witness testified that by his measurement, the plaintiff’s lot included eleven acres, but that in making his computation, he used ten acres. In explaining this assumption, he testified as follows: “I have the feeling that I must have used ten because all the traditions of estimating are on the conservative side, . . . and I wanted to be on the safe side because no one can ever live down the reputation of having overestimated, and I don’t think I have overestimated in over . . . forty years.”

The jury were not compelled to accept the assumptions of the witness, but might properly consider his actual estimates of quantity and acreage. It is evident that a computation based upon a finding that the plaintiff’s land was one-quarter stocked instead of one-sixth, and that it included eleven acres rather than ten, would lead to a much higher figure than one based upon the assumptions stated. The exact amount of $275 no doubt reflected the varying views of the jurors in regard to the amount of the difference. If it is impossible to figure on the evidence the exact basis for the jury’s decision, it is equally impossible to say that it was not in accord with the evidence.

This is not a case like Wood v. Insurance Company, 89 N.H. 213, where it was held that the information obtained by a jury on a view of premises after a fire was not a sufficient basis for a finding as to market value. The present case, on the contrary, exemplifies the ordinary duty of a jury to weigh the evidence properly before it.

Judgment on the verdict.

All concurred.

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