Central Branch Union Pacific Railroad v. Andrews

37 Kan. 162 | Kan. | 1887

Opinion by

Holt, C.:

This action was begun in the court below by R. S. Andrews, on September 13, 1878. This is the fourth time this case has been in this court. (Railroad Co. v. Andrews, 26 Kas. 702; 30 id. 590; 34 id. 564.) It was last tried in September, 1886, before W. D.W., judge pro tem., and a jury, and the verdict and judgment were for the plaintiffs, for $3,765.98. Plaintiff in error, defendant beloAV, now seeks a reversal of that judgment. For a statement of facts, see Railroad v. Andrews, 26 Kas. 702, and Railroad v. Andrews, 30 id. 590. The plaintiff in error makes quite a number of assignments of error, a part only of which we shall consider in the examination of this case. It contends that the allegation in plaintiffs’ petition of the appointment of plaintiffs as administrators of the estate of R. S. Andrews, deceased, is not sufficiently explicit. The allegation is as follows:

“First: That said R. S. Andrews died, in Atchison county, Kansas, upon March 9, 1883; and thereafter, and upon March 13, 1883, said L. A. Andrews and B. F. Hudson were, by the probate court of Atchison county, Kansas, being duly and legally authorized thereto, duly and legally appointed administrators of the estate of said R. S. AndreAvs, deceased, and letters of administration duly and legally issued to them as such out of and by said court, and that they thereupon duly and legally qualified as such administrators, and have ever since been and now are the duly and legally authorized, appointed, qualified, and acting administrators of the estate of R. S. Andrews, deceased.”

This is sufficient. It is a brief and direct statement of the facts, in ordinary and concise language.

Another error complained of is, that Avitnesses were allowed to testify as experts to the value of the lots abutting upon the alley immediately after the railroad track was laid down through it. They had been asked simply whether they kneAv the market value of the lots in question on or about August 1, 1877. It appears that the track was laid down in a very short time — in a feAv hours — about August 1, 1877. We believe from their answers that they had knowledge of the market values of the lots in question on or about August 1, 1877, and that they were sufficiently qualified to answer in regard to their value, both before the laying doAvn of the track, as well as immediately afterward. The time of the laying down of the track was so brief, and the question asked, limiting it to “on or about,” is broad enough in our opinion to permit the testimony to be introduced.

Another objection urged is, in allowing A. J. North to give his opinion of the value of said property. He was asked whether he knew the market value of the lots in question, and he replied that he did not know the real value; but after some hesitation, upon further examination he said that he had an opinion of their market value. It further appears in the testimony that he had been dealing in land in Atchison since 1870, and had bought land in the part of the city where the lots are situated, although not in the same block. The testimony of North was not as specific and definite as might have been desired, so far as his qualifications are concerned, yet we think that it was competent.

The plaintiff in error still further complains that it was not allowed to introduce in evidence, by the witness L. C. Challiss, the admissions or statements made by R. S. Andrews in his lifetime as to the value of the lots. The witness was asked whether he had a conversation in regard to this property in the lifetime o#Mr. Andrews, and he answered in the affirmative. He was not able to definitely fix the time, but said he guessed it was before 1880. On objection made by plaintiff he was not allowed to testify. The attorney for the defendant then offered to prove by the witness the market value of the property as placed on it by R. S. Andrews in his lifetime, about the time of the construction of the brick building and shortly previous to the laying down of the track in the alley. To this offer the plaintiff objected, and the objection was sustained. The witness also testified in regard to a conversation had shortly after returning from New York in 1878.' There is no admission of the value of the lots in question at or near August 1, 1877. In fact, the admission of the value of the lots was either a long time before or a long time after that date. The offer to prove that the statement was made before the filing of this petition and about the time -that the brick house was built, was very indefinite, as the brick house was built before the track was laid; how long, does not appear in the evidence; and the petition was not filed until 1878. While ordinarily all the admissions of the party ought to be introduced in evidence, and while it might not have been error to have admitted the testimony of Challiss in this case, it further appears in evidence that the market value of lots and real property in the city of Atchison was fluctuating, and to have ascertained the values at the various times named would not have been a definite basis from which to establish the value of the same August 1, 1877. If the market value of the land had been nearly the same all these years, then the testimony sought to be introduced would have been more in point. But under the other testimony introduced, showing the changing values of property in the city, it seems to us that this rejection of the testimony offered is not material error.

It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.