Seefeld v. Chicago, Milwaukee & St. Paul Railway Co.

67 Wis. 96 | Wis. | 1886

LyoN, J.

1. For the purpose of proving the value of the lot in question, the plaintiff offered and the circuit courts against the objection of the defendant company, admitted in evidence the record of five deeds of as many lots in the same neighborhood, executed in 1885 by different grantors to John W. Cary; and of another deed of another lot, executed in 1884 by one Markham to one Thorson. Each qf these deeds expressed a consideration, and they were received in evidence on the theory that the consideration thus expressed proved the price paid for each lot, and tended to show the value thereof, and, by inference, the value of the lot in question.

On their face the railway company was a stranger to these conveyances, and was not bound by the recitals therein of the consideration paid. Such recitals are nothing more ^han exporte statements of the grantors and grantees that the considerations named were paid and received for the respective lots. As between the parties thereto each of these conveyances would be evidence of the consideration paid and received, because it is an admission of the fact by all parties to it. But it is not conclusive evidence. Either party may show that the true consideration was greater or less than that named in the deed, just as a party may always deny, explain, or controvert his alleged admissions, against his own interest, unless they create an estoppel. As to a stranger to the deed, however, such evidence is purely hearsay. It is precisely the same in this case as it would have been had the plaintiff put a witness on the stand, and, for the purpose of proving the value of the lot. in question, interrogated him as to the statements and admissions of any grantor or grantee of a lot in the same vicinity of the sum paid and accepted therefor. No one will maintain, for a moment that such evidence is admissible. We think the records of the conveyances above mentioned are equally inadmissible, and for the same rear sons.

It appeared later in the trial that the deeds to Mr. Cary were made for the railway company, and that the consideration expressed in each of them was the 'sum at which the lot conveyed had been appraised by commissioners in condemnation proceedings. Had that fact been developed when the records of those deeds were put in evidence, they would prove only the opinion of the commissioners of the value of the several lots. It would still be hearsay evidence and incompetent. If the plaintiff desired to get the opinion of the commissioners to the jury, he should have called them as witnesses; thus giving the opposite party the opportunity and advantage of cross-examination.

What is here said of the conveyances to Mr. Cary has no reference to the conveyance by Markham to Thorson. To that conveyance the railway company is an entire stranger, 'and there appears to be no other testimony as to the value of the lot conveyed by it.

A very liberal rule of evidence prevails in this state in the investigation of values in condemnation proceedings. Great latitude is allowed in the examination of witnesses as to value, both on their direct and cross-examination; but there are limits to such examinations, as a perusal of the cases on that subject adjudicated by this court will show. In this case we think those limits have been passed, and forbidden ground occupied, to the injury of the defendant company. Snyder v. W. U. R. Co. 25 Wis. 60; Hutchinson v. C. & N. W. R. Co. 37 Wis. 582; Watson v. M. & M. R. Co. 57 Wis. 332; Neilson v. C., M. & N. W. R. Co. 58 Wis. 516; Washburn v. M. & L. W. R. Co. 59 Wis. 364.

2. The court instructed the jury as follows: “ You are to determine this case from the evidence before you and the knowledge of the premises you have acquired by a view of them, using your honest judgment, and governed by the rules of law which I have given you.” Upon this instruction error is assigned.

In Washburn v. M. & L. W. R. Co., supra, the following instruction was held erroneous: “ You are to determine it [the compensation] from the whole evidence that has been given you in the case, from your view — you take the view you make, you take your own knowledge, your own judgment, your own good sense.” In that case the office of a view in cases like this was somewhat fully discussed, and it was held that the true and only office of such view is to enable the jury to determine the weight of conflicting testimony respecting value and damage. This rule was applied in Munkwitz v. C., M. & St. P. R. Co. 64 Wis. 403.

We are of the opinion that the instruction in this case concerning the view is open to the same objections that prevailed against the instruction on the same subject in the Washburn Gase. The jury may have understood therefrom that they might, in the exercise of honest judgment, properly rest their verdict upon their knowledge of the lot in question acquired by the view, even though their judgment was not sustained by the proofs. If instructed on the subject, they should have been told that their knowledge acquired by the view was to be used only in determining the weight of conflicting testimony of value.

3. For the purpose of informing the jury what sum the commissioners awarded to the plaintiff, his counsel, in opening the case, persisted, under objection, in reading to them the defendant’s notice of appeal, in which the sum so awarded was stated. The court ruled, against objection and due exception, that he might do so. Direct testimony of the sum so awarded would have been immaterial, and therefore inadmissible. Munkwitz v. C., M. & St. P. R. Co. 64 Wis. 403. Probably it would also have been incompetent, as being in the nature of hearsay evidence. Of course, it was improper for the counsel, in his opening, to state a fact to the jury which his client could not be permitted to prove. However, the court instructed the. jury that they could not consider the award as evidence of value, and added that the award was not in evidence.

¥e do not determine whether the error in allowing counsel for plaintiff to state to the jury the amount of the award would, of itself, work a reversal of 'the judgment. "We only suggest that, when the cause is again tried, it will be the safer course not to repeat the statement.

4. The plaintiff recovered interest from the time the award of the commissioners was filed. This is alleged as error. The subject is discussed, and the principles upon which interest is to be allowed or withheld are determined, in Uniacke v. C., M. & St. P. R. Co., post, p. 108. No repetition of what is there said is required here. An application of those principles to this case leads to the conclusion that the plaintiff is entitled to interest on the whole sum assessed by the jury as compensation for the lot in question, from the date of filing the award.

By the Court — The judgment is reversed, and the cause remanded for a new trial.