Gordon v. Sullivan

| Wis. | Feb 3, 1903

WiNsnow, J.

The judgment in favor of the city was unquestionably right. This court held in the case of Devine v. Fond du Lac, 113 Wis. 61, 88 N.W. 913" court="Wis." date_filed="1902-01-28" href="https://app.midpage.ai/document/devine-v-city-of-fond-du-lac-8187191?utm_source=webapp" opinion_id="8187191">88 N. W. 913, following Henker v. Fond du Lac, 71 Wis. 616" court="Wis." date_filed="1888-05-12" href="https://app.midpage.ai/document/henker-v-city-of-fond-du-lac-8182870?utm_source=webapp" opinion_id="8182870">71 Wis. 616, 38 N. W. 187, that, under the charter of the city, a party suffering injury by reason of a sidewalk being out of repair must exhaust his remedy against the lot owner, as a condition precedent to the right to maintain an action against the city. If the fact of the exhaustion of the remedy against the property owner be a condition precedent to the liability of the city, then, upon familiar principles, no cause of action is stated unless the complaint states the fact, and no cause of action is proven unless the fact appear in the evidence or is admitted, and the failure to plead and prove the fact may be taken advantage of at any time. It is not a case of bringing an action prematurely, but of bringing an action before a cause of action exists. It appeared in the present case that no judgment had been obtained against the property owner; hence the action against the city could not he maintained. The plaintiff attempts to avoid the effect of the rule laid down in the Devine Case by the argument that the rule only applies to cases of injuries resulting from neglect to repair, and not to cases of original ■defective construction, and she claims that there was evidence in this case tending to show that the defect in the present case was in the original faulty condition of the walk. Whether there is in fact any difference in the two situations, under the charter provision, seems very doubtful, but the question is not involved here. The present case is one where the defect claimed in the complaint was specifically one of failure to keep in repair. The complaint was never amended, nor any claim made in the trial court in any manner that a recovery was sought on the ground of original faulty construction. It is too late to make the claim in this court for the first time.

As to the property owner, different questions arise. One John E. Sullivan, who is the husband of the defendant Mattie E. Sullivan, was sworn, and allowed to testify as a •witness against objection, and it is claimed that this is error, ■on the ground that a husband may not testify for or against his wife, except when he has acted as her agent. The objection is not tenable, because the wife was defending in a representative capacity only. Strong v. Stevens Point, 62 Wis. 255, 22 N. W. 425.

It is claimed that the court erred in ruling out a part of the testimony of one Murphy, a witness on the part of the ■city, called to testify as to the general condition of the walk before and at about the time of the injury. Without stating the numerous rulings in detail, it may be said that the effect ■of them was simply to exclude statements by the witness as to the condition of the walk at times which he was unable to locate as being anywhere near the time of the injury, and general statements to the effect that its condition was bad. All the statements of fact which he was able to make, relating to the condition at the time of the injury, wei'e admitted. It is evident that there was no error in the rulings. It is not competent for a witness to state that the condition of a sidewalk was had. This is a mere conclusion, and invades the province of the jury. It is not a question for experts to settle. Witnesses are to state the facts, and the jury draw the conclusion.

It is also claimed that the court erred because he submitted no question and gave no charge upon the question of the supposed original faulty condition of the walk. As has been before stated in this opinion, no claim was ever made, either in the pleadings or upon the trial, that a recovery was sought on this basis, but the distinct claim of failure to repair was made from beginning to end of the case. It does not suffice to raise a new issue of this kind in the case that some slight testimony incidentally crept in from which original faulty condition might be claimed. If it was desired to litigate this question, the complaint should have been amended, or at least attention should have been called to it in the trial court in some distinct manner, in order that the question might be tried in an orderly manner. Under the circumstances, it cannot be considered that the issue was ever made.

The objection that the verdict is against the clear preponderance of the evidence is also untenable. There was ample evidence to sustain the findings of the jury on the vital questions of the case.

Some exceptions are preserved to the charge on the subject of damages, but, as the findings of fact exculpate the defendants from any liability, the instructions on the subject of damages become immaterial.

By the Court. — Judgment affirmed.