Burnett v. Fisher

McKinstry, J.: This case is like Brownell v. Fisher, ante, with the additional circumstance, that, at the trial, one C. D. Rhodes, a witness, was asked by counsel for defendants, “ Did the plaintiff in this action make application to you to oversee the hands that were at work on his land to cut down the trees ? ” The plaintiff’s objections to this testimony, on the ground of irrelevancy and immateriality, were overruled, and exception duly noted.

There was evidence tending to prove that Rhodes, the civil engineer who had charge of the building of the levee, to make way for which the plaintiff’s trees were cut down, had the immediate superintendence of the cutting down of the trees, under the direction of defendants, who were trustees of the Reclamation District. The agency of Rhodes—his authority on behalf of defendants to employ men to do the cutting—might have been inferred by the jury, and, the agency admitted, evidence of an application to Rhodes by plaintiff to oversee the men would certainly lend to prove the latter’s consent that the trees should be cut down.

Judgment and order reversed, and cause remanded for a new trial.

Ross, J., and McKee, J., concurred.