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extracted from a certain stope called the 'Trespass stope.'
(10) That said trespass being intentional, willful and fraudulent, the plaintiff is entitled to have the value of the ores so taken and converted trebled, and the aggregate damages amount to fifty thousand six hundred and ten dollars." Judgment was rendered in favor of plaintiff and against defendant in accordance with the foregoing findings 241 for the sum of fifty thousand six hundred and ten dollars. To reverse this judgment defendant has appealed to this court.
Appellant insists that the findings are not only unsupported by, but are contrary to, the evidence. The record contains about one thousand pages of testimony, besides numerous time-books and payrolls of appellant, and also sev. eral maps showing the agreed boundary line hereinbefore referred to between the respective companies (plaintiff and defendant), as well as extensive underground workings at and in the vicinity of the stope wherein it is claimed the alleged trespass was committed. We deem it unnecessary to here review in detail this voluminous record, as a brief reference to the testimony of some of the principal witnesses is all that is necessary to support the findings assigned as error.
John Group, one of plaintiff's witnesses, testified, in substance, that in the year 1888, he worked for defendant company; that he worked across the boundary line mentioned and into the Trespass stope, taking out ore for a distance of seven or eight feet; that, when it was discovered, he was working in and extracting ore from plaintiff's ground, he was ordered by defendant's foreman to stop working at that place and to bulkhead the entrance to the stope, which he did; that in 1889 he left defendant's employment and returned to work again in 1893; that in the year 1896 he and one Nelson, another employé of defendant company, removed, by order of defendant's foreman, the bulkhead from the Trespass stope, which he (Group) had placed there in 1888; that when this bulkhead was removed Jared Roundy was foreman and John A. Kirby was superintendent of defendant company. Nelson was called as a witness by plaintiff and corroborated the testimony of Group in relation to the removal of the bulkhead from the entrance of the Trespass stope, and further testified, in part, as follows: “While I was working there [referring to the Trespass stope] the men were breaking ore in the stope, Hanson and Thompson. While that six weeks' work was going on in this stope, I saw Roundy up there. IIe used to come every day. I saw Kirby in that stope. He was up the first day when we struck the ore.
That afternoon he came up with Roundy. The same day we took the bulkhead down. I saw him there two or three times after that in the stope. During that six weeks I was timbering most of the time. Sometimes I would go up in the stope.' George Hanson, another of plaintiff's witnesses, testified that: “I worked for the Bullion Beck Mining Company in 1896. Kirby was then superintendent and Jared Roundy foreman. I first saw Trespass stope in 1896. ... I and Joe Thompson were taken up there by Roundy, the foreman. When we got into the Trespass stope, we found ore there lead and galena and silver ore. We started to break ore and continued to work there six or seven weeks, breaking ore through the whole of that six or seven weeks. There was no waste. It was all ore. ... Kirby was up there while we were at work in this stope several times. Roundy was up there nearly every day while we were at work." Plaintiff called other witnesses, who testified to substantially the same facts as those mentioned. In fact, much evidence not herein referred to was introduced by plaintiff company which tended to show that defendant committed the trespass alleged in the complaint. To meet and overcome the evidence produced by the plaintiff the defendant called Mr. Kirby, its superintendent, and Mr. Roundy, its foreman, as witnesses, and each of them denied that he had anything to do with the working of the Trespass stope, or had any knowledge of when, or by whom, the stope in question had been worked and the ores extracted therefrom. In fact, their testimony is, in effect, a flat contradiction of that given by the witnesses for the plaintiff company on this point. It will thus be seen that there is a substantial conflict in the evidence on the issues involving the merits of the case. This court, in a long line of decisions, has uniformly held that, when there is any substantial evidence to support the findings of the trial court, such findings will not be disturbed.
Counsel for appellant have devoted much space in their briefs in pointing out, and in the discussion of, what they 243 claim to be inconsistencies in the testimony of the plaintiff's witnesses; but, as this is an action at law, this court is precluded from examining into or in any way considering those matters, as they only go to the weight of the evidence and credibility of the witnesses. The referee, whose province it was to pass upon the credibility of the witnesses in weighing the evidence, evidently gave these questions due consideration, for, in the course of his written opinion filed in the
case, he says: “It is argued by defendant's counsel that the disagreements and inconsistencies appearing here and there in the testimony of plaintiff's witnesses indicate a lack of candor and truthfulness which render them unworthy of belief. . . . . As to the testimony given by the witnesses in the case, it is my duty, if I can do so, to reconcile all of it along the lines of truthfulness and honesty, and I must also do this with the evidence given by the plaintiff's witnesses, if
All of them but Kell were produced at the trial, and I had an opportunity of judging, from their manner on the stand and appearances generally while giving evidence, of their character. My impression was, and is, that each of them was endeavoring to state the truth as he remembered it; and it is not surprising that, after such a lapse of time, the memories of the witnesses should be at fault as to times and nonessential circumstances. They differ among themselves as to some matters; but I think the testimony, as a whole, can be easily reconciled as consistent and harmonious on all substantial matters." After a careful and thorough examination of the record, we are of the opinion, and so hold, that there is ample evidence to support the finding that the defendant company committed the trespass charged in the complaint, and that trespass was intentional and fraudulent. In fact, the physical conditions in and about the Trespass stope, as shown by the several maps in evidence, and by the testimony of the witnesses, including that given by several competent and experienced civil engineers who surveyed the underground workings and prepared the maps referred to, demonstrate beyond the possibility of a doubt that, if the defendant committed the trespass at all, it did so intentionally. 244 While there is some conflict in the evidence regarding the value and quantity of the ore extracted by defendant from the Trespass stope, we think it is sufficient to uphold the finding of the referee on this point.
The next assignment of error refers to the exclusion of evidence, by the referee, relating to certain "field-books" and certain memoranda appearing on the payrolls and time-books of appellant. The referee has so completely and logically covered and discussed the questions arising under this assignment of error in his written opinion filed in the case, we hereby adopt that part of his opinion wherein he says: "These books contain the names of the men which were usually written in by the timekeeper, and the books ruled in lines, vertical and horizontal, which, crossing each other, form spaces in columns under the several days of the month printed
at the top, in which spaces the shift bosses checked each man's time for each day by writing therein in pencil the figure ‘l' or a fraction as the case might be. They also contain frequent memoranda, such as initial capital letters, also in pencil, said to indicate the capacity in which the men worked, 'M' meaning miner, 'T' timberman, 'B' Burleigh, for Burleigh drill, etc. These letters are supposed to be written by the shift bosses, and I believe in some instances Franke and Temby identified some of these letters as being in their handwriting (I think also, some evidence was given of Brand's handwriting) in identification of some of these letters appearing in his books. It is apparent, however, on the face of these books, that some of the letters are not in the handwriting of the shift bosses. It was shown that it was the duty of the shift bosses to keep the time correctly, and Franke and Temby testified that they tried to do so, and believed they had kept their books correctly. All of these time-books together furnished the data, the original data, for the making up of the payrolls for the men underground. The witnesses for the plaintiff who testified to the work in the Trespass stope identified their signatures to the payrolls, which showed the number of, but not the particular, days each worked in a given month. I think these payrolls are admissible as bearing upon the question 215 of the accuracy of the recollection and statements by the several witnesses who signed them as to the number of days and months they were at work. The memoranda upon the pay. rolls as to the capacity in which the several men worked is not original evidence, and I exclude all such except in the individual instances where the attention of the witnesses was directed to such memoranda and opportunity afforded them to explain or deny the same: Healey v. Wellesley etc. Ry. Co., 176 Mass. 440, 57 N. E. 703. As to the time-books themselves, there is apparently a conflict of authority as to their admissibility, and I have serious doubts upon the question. I have concluded, however, to overrule the objection to these books, and also that to the timekeeper's buoks, letting the two sets of time-books go in evidence, together with the payrolls; but I exclude from the evidence all letters or memoranda appearing in these books by way of indication of the capacity in which or the places where the men worked. The field-books are in a different situation, however. They came to the shift bosses from the timekeeper, who prepared them for use by writing in the left-hand column of each page the figures and words indicating the levels, stopes, drifts, and other places in which work was done each day and night by the two shifts and by writing at the top of the page, at the head of column prepared, certain words, such as ‘Miners on Ore,' 'Miners on Dead Work,' 'Laborers,' 'Cars of Ore,' 'Powder,' 'Fuse,' 'Caps,' etc., indicating the places where men worked, the number working, the character of the work, and the consumption of supplies, etc. The shift bosses were supposed to fill in these columns with figures indicating the progress of the work in the mine and the consumption of material each day. These books were not correctly kept, and, as said by Mr. Hume, were not supposed to be accurate, and otherwise did not appear to be competent as evidence against the plaintiff. They were kept by a private corporation solely for its own purposes and in the administration of its internal affairs, and I do not think, under any rule of evidence, they can be competent as witnesses to isolated and collateral facts in a suit between the corporation and a a stranger."
246 The judgment of the court below is affirmed, with costs. Straup and Frick, JJ., concur.
ADMISSIBILITY IN EVIDENCE AGAINST THIRD PERSONS OF
BOOKS. REPORTS AND THE LIKE, OTHER THAN BOOKS
OF ACCOUNT. I. Scope of Note, 842. II. General Rule as to the Admissibility of Entries Made in the
Regular Course of Business, 842.
terial Used, Manufactured, or Produced, 851.
d. Note Registers, Check-books, Inventories and the Like, 852. IV. Admissibility of Books Containing Memoranda of Daily Transac
tions and Doings, 853. V. Admissibility of Books and Reports Used as part of System of
1. In General, 855.
3. Livestock Registers and Herd-books, 857. VI. Admissibility of Books and Records of Corporations, Lodges, and