Dougherty v. Stewart, 43 Iowa 648

Dougherty v. Stewart

43 Iowa 648 | Iowa | 1876

Rothrock, J.

Pending the trial the defendant introduced D. Norris as a witness, and asked him the following question: “ State your opinion as to the amount of damage done to those premises while they were occupied by Mr. Dougherty?” Objection being made to this question, the court stated to the witness: “ Ton will have to state the items of damage. It would not be competent for you to sum up the amount of damage; that will be for the jury. Just take the particular items and state that' the damage is so much. Take the door, and pump, and so on.” The witness, after stating that there might be some damage which he could not recollect, proceeded to state what items he could recollect, making an aggregate to the amount of $30 or $40.

The defendant then called I. W. Griffith, who was one of the parties named in the lease, (the said D. Norris being the other party named therein), who testified that he was requested by the defendant to examine the premises with a view to ascertaining the damages; and his attention was called by counsel to a written assessment of damages made by himself and said D. N orris, and he was asked to explain the difference between the damages that he assessed at the time he examined the premises and the amount he stated on the trial. This was objected to, and objection sustained. The defendant then offered in evidence the said written assessment made by Norris and Griffith, in which the damages are fixed at one hundred dollars, generally, without specifying what particular damage was done or taken into account. The introduction of this paper was objected to, and the objection sustained. To all this action of the court proper exceptions were taken by the defendant.

i. evtoeitoe: emo1tenis.pe I. There was no error in the refusal of the court to allow the witnesses to state generally the amount of damages done to the house and lot. The witness, Norris, was asked the general question as to the amount of damages, without first showing by him or any one else, so far as wé are advised, that any damage whatever was done or suffered. *650The question then was an unwarranted assumption, not competent in any view that may be taken of the case. The 'witness should have first stated, not only that there were damages to the property, but in what particulars. It is sometimes allowed a witness, after stating that damages exist and the particular items thereof, to make a general estimate of amount, leaving the cross-examination to develop how much the witness affixes to each item. In this case this was not done, and the court pi’operly held that the witness must state the items oí •damage. And it is proper to say that injuries to a house and lot are not in their nature such an entirety as to be incapable of separate consideration.

2 _._. pleading. II. The question asked the wdtness, Griffith, having reference to the written estimate made by himself and Norris, and the offer to introduce the said writing in evidence, are p0tp 0f the same character and present the same question, that is, was this written estimate of damages competent evidence? It will be observed that the defendant does not plead it as an award; that it is no where referred to in his answer; that before attempting to introduce it in evidence he called the parties who made it as witnesses to prove the damages. In this state of the case there was no error in refusing to allow the writing in evidence. It is enough to say that, if an award be relied on, it must be pleaded. As this disposes of the point made upon the writing in question, it is unnecessary to determine what its effect would be as an award in a proper case made.

A FFIRMED.