Gage v. Kern

BARNARD, P. J. The plaintiff was employed as caretaker on the defendant’s mountain ranch from December 16, 1948, to October 11, 1950. In February, 1951, he brought this action to recover compensation for his services. In the second count of a cross-complaint the defendant sought damages, alleging that the plaintiff had injured “various oak trees” by cutting, chopping and sawing them “in such a careless, wasteful, improper and destructive manner as to cause the said trees to be deformed and to become sick and, in most cases, to die.” When the evidence was all in, and before arguments to the jury, the court granted the plaintiff’s motion for a nonsuit as to this count. The jury returned a verdict in favor of the pláintiff upon the complaint and upon the first cause of action of the cross-complaint. A motion for a new trial was denied, and the defendant has appealed from the judgment.

No attack is made on the judgment insofar as it relates to the complaint and the first cause of action of the cross-complaint. Appellant’s sole contention is that the evidence, while indefinite and uncertain as to the extent and amount of damage, was sufficient to require the submission of that issue to the jury. It was and is claimed that the respondent injured some trees by cutting burls, without covering the wounds on the trees with paint, cement or some [655]kind of tree seal. Apparently, these burls were cut in 1949, although the time is not clearly disclosed by the record. The appellant admits that he sold this ranch about a year after the cutting of the burls, and prior to the trial of the action; that nothing was said before the sale about the injured trees; and that he did not know whether the buyer noticed the damage, or whether he paid less for the property than he would otherwise have paid.

The appeal is taken upon a partial transcript containing certain testimony of the appellant, and of a witness named Lamb. Lamb testified that in May, 1952, he saw some trees on appellant’s ranch; that he thought they were 75 or 100 years old; that some trees had rotted where burls or limbs had been cut and no tree seal applied; that where such a seal was not applied the weather would cause a tree to rot; and that such deterioration as he saw would come about in from three months to a year. The appellant testified that he went to the ranch one morning and saw the respondent with six or seven burls; that the respondent told him that he was cutting burls and selling them; that he asked respondent if this was not “a heck of a job”; that he did not look to see what trees the burls came from; that the next day he saw the respondent cutting a burl; that the respondent said to him 1 ‘ This might turn out to be pretty good. If it does, Kern, I’ll cut you in on half of it”; and that “I passed it off then and thought no more of it at all.” He further testified that in March, 1951, he noticed that some of the trees were dying; that he had the ranch up for sale at that time; that the trees which were dying were the ones from which burls had been cut, and apparently the winter rains had started them to rot; that no attempt had been made to seal up the cuts; that he was familiar with cutting burls from trees and knew that sealing was necessary in order to prevent injury; that he did not object when he saw that the respondent was cutting burls from the trees and made no protest; that he did not put on tree seal or tell the respondent to do so; that he did not tell the respondent not to cut burls or make any protest until he filed his cross-complaint; that he saw indications within two or three months that the trees were being injured but did nothing about it; that he cut his asking price for the ranch from $65,000 to $45,000, and the injury to the trees was a contributing factor in this; that he figured the ranch was damaged in the amount of $2,500 because probably