Libellant claims $ 500 for diver's wages. Maier stated that the diver received $ 25 per day and his tender received $ 12.50 per day; that he was uncertain as to the exact number of days the diver was employed but that it was a little more than a week. It is impossible to determine from Maier's testimony how many days the diver worked. Any approximation would be nothing more than a guess. This claim, therefore, cannot be allowed.
As the last item of expense libellant claims $ 2310 for wages paid to his employees between June 18th and October 8th, during which period the vessel was raised, and $ 940 as wages for employees who removed the silt and grain residue from the bilges between October 8th and November 26th. Maier stated the amount of the weekly expenditure for labor from a present recollection after refreshing his memory from checks marked 'salary and petty cash' dated at weekly intervals. Although counsel for respondent demanded production of the social security records which Maier admittedly kept, libellant was unable to produce these records or any other business records of wages paid.
Respondent contends that, under the 'best evidence' rule, Maier's testimony should have been excluded upon objection and that the Court should not now consider this evidence in assessing damages. Counsel labors under a misconception of the rule. The 'best evidence' rule is one of preferential evidence requiring that where a party seeks to prove a writing for the purpose of establishing its terms, production must be made of the writing itself unless the non-feasibility of production is satisfactorily established.
Since libellant does not seek to establish the contents of the social security or other business records, the rule has no application here. Maier is competent to testify as to the wages paid so long as the facts are within his own knowledge. It may be true that libellant's business entries might be entitled to greater probative force than his oral testimony, but the business records are not preferred over oral testimony nor is libellant required to produce them.
The weekly wages paid between June 18th and November 26th will be included as part of the expenses with one exception. The wages paid on June 18th amounting to $ 155 were for labor performed before the salvaging operations began and must therefore be excluded.
Libellant has thus established by competent testimony that the cost of raising and moving the submerged vessel from the Packer Avenue slip, with the holds of the vessel and the slip channel full of grain residue discharged from respondent's plant, was approximately $ 15,400. Maier stated that it cost $ 1200 'to move' a submerged vessel of approximately the same size, in a similar condition, and located nearby. That vessel was raised about eight months before this salvage operation began and before respondent began to discharge the grain residue. Libellant urges that he is entitled to a judgment for the difference between the cost of raising that vessel and the amount expended in this salvage operation.
Respondent argues that no judgment can be entered since the facts do not afford reasonable basis for assessing even approximate damages, and that an award of damages must, of necessity, be speculative.
It must be conceded that some of libellant's evidence on damages was contradictory and confusing. However, inability to compute the amount of damages with precise mathematical accuracy will not preclude the entry of judgment. Palmer v. Connecticut Railway & Lighting Co., 311 U.S. 544, 61 S. Ct. 379, 85 L. Ed. 336, rehearing denied, 312 U.S. 713, 61 S. Ct. 609, 85 L. Ed. 1143; Christensen Mach. Co. v. United States, 50 F.2d 282, 73 Ct.Cl. 149; Pierce v. Lehigh Valley Coal Co. (No. 1), 232 Pa. 165, 81 A. 141; Eckman v. Lehigh and Wilkes-Barre Coal Co., 50 Pa.Super. 427. If the fact that libellant's damage resulted from respondent's course of conduct is certain, it is sufficient that a basis of computing a reasonable approximation of damages exists. Story Parchment Co. v. Paterson Parchment Paper Company, 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544; Eastman Kodak Co. of New York v. Southern Photo Material Co., 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684; Hartman v. Pittsburgh Incline Plane Company, 159 Pa. 442, 28 A. 145; Hoober v. New Holland Water Co., 43 Pa.Super. 262. To hold otherwise would be perverting justice by a blind quest for perfection.
I will accept libellant's proof of the comparative cost of raising and moving the submerged vessel before and after the grain residue was discharged into the river. However, certain deductions will have to be made. The cost of raising the first vessel was comparatively low. Maier was in business for himself, drawing no salary. As individual owner of the business, he bought equipment and paid for help and materials, drawing as his compensation whatever was left in the business. The inference is that, in estimating costs, he habitually failed to value his services and the use of his equipment. I do not believe that Maier included such factors as the value of his services and the value of the use of his equipment in computing the $ 1200 figure. Adjustment should therefore be made in that regard. In computing the cost of raising and moving the second vessel, I included the wages paid for removing the refuse and silt from the bilges after the vessel was removed to Pier 112. Maier advanced the $ 1200 figure as the cost of moving the first vessel. The inference to be drawn is that he did not include the cost of removing the silt from the bilges which, if the salvaging operations were comparable, was probably removed after that vessel was towed to Pier 112. Finally, it was impossible for any witness to estimate what portion of the solid matter in the ship was river silt and what portion was grain residue, although it is clear that the major part of the matter removed from the vessel was the grain. Respondent cannot be charged with the cost of removing silt. The foreman testified that a considerable amount of silt was found in the first vessel, and it is reasonable to assume that a proportionate amount of silt settled in the second vessel in the period between the raising of the ships. Therefore, the expense of removing the solids from the bilges at Pier 112 and that part of the expenses incurred proportionate to the approximate ratio of silt in the matter removed must be deducted.
After making approximate deductions for these factors, I fix libellant's damages at $ 11,000.
Conclusions of Law
1. This Court has jurisdiction of this action under Section 24(3) of the Judicial Code, 28 U.S.C.A. § 41(3).
2. This Court has jurisdiction over respondent Publicker Commercial Alcohol Company.
3. The discharge of grain refuse into the Delaware River from respondent's alcohol plant constituted an actionable nuisance.
4. Respondent is liable in damages for the injury caused libellant by the discharge of grain refuse into the Delaware River.
5. Libellant was not at fault in any degree for the damages caused.
6. Judgment may be entered for libellant in the amount of $ 11,000.