57 Wash. 290 | Wash. | 1910
This is an appeal from a judgment of no damages to appellant, in the Western Avenue (Seattle) regrade case. The case was originally tried in May, 1909, and a new trial was granted. The case again came on for trial in June, 1909. Many irregularities in procedure were charged in the first trial and the proceedings leading up to it, all of which, in our opinion, have become unimportant and will not be now considered. However, it may be material in our discussion of the questions which we do find in the record to say that it appeared on the first trial that the Washington Mattress Company, a corporation, occupied the property involved in this case as a lessee; that the mattress company had not been made a party to the proceedings, and to cure the possible error as well as other irregularities, the trial judge granted a new trial. It was thereupon agreed that counsel would enter an appearance for the appellant as well as the mattress company. After a motion for separate trials had been overruled, the case proceeded to trial, resulting in a verdict of no damage to appellant, and a verdict in the sum of $2,500 in favor of the mattress company. From this verdict, the Standard Furniture Company, the owner of the fee, has appealed.
We have read the' long record, and considering the legal points involved without reference to the feeling which seems to have crept into the case, or the rhetoric with which personal opinions have been expressed, we find but little to engage our serious attention.
The first question arising is, whether a reversal should follow because this appellant had no notice of the time the case would be called for preliminary hearing and was not present when the court found that the property involved was to be taken or damaged for a public use. Rem. & Bal. Code, § 319, provides for notice of the trial, and the manner of its
The next objection which we deem it necessary to notice is that appellant was penalized by being forced to trial with the Washington Mattress Company, its lessee. The consolidation of this class of cases for trial is within the discretion of the court (Rem. & Bal. Code, § 7768 et seq.), and will not be reviewed unless prejudice is clearly shown.
It is also contended that the court erred in directing one recovery, leaving it for division between the parties found to be entitled thereto. The statute directs that this shall be done, and it was not error. Rem. & Bal. Code, § 7778.
One Pardee was put upon the stand by the petitioner, when the following colloquy between the court and counsel took place:
“Mr. Carey: Now, if that objection goes to the fact that I did not qualify him, why, of course, I will qualify him now. Mr. Jones: I do not care to take up the time for my — The Court: This witness not qualified? Mr. Jones: The court held he was qualified. I don’t see — The Court: This witness has been testifying in this court on this regrade case and other matters for such a period of time in this very regrade, on the other branch of the trial, for ten days, and the court takes less time to qualify the witness like that than a new one, and besides that, the court holds that a man that has been actively engaged in the real estate business, in this city for the last three and a half years, and maintained his own office, and has been connected with so well established an office as 'George Dilling, prior to that time, is qualified to give opinion evidence, so you will proceed with the examination.
The witness then testified that the property of this appellant was benefited to the amount of $6,000 to $6,500 over any damages sustained. The amount of testimony to be taken upon the qualification of a witness is for the court and will not ordinarily be reviewed. The weight and credit to be given to this opinion is for the jury. The remark of the court to which exceptions were taken was clearly error, and it must have so occurred to the trial judge, for he attempted to cure it by his subsequent remarks. If the witness had qualified himself in any degree, the effort of the court to cure the error would have been availing; but the record shows that he had not done so, and did not do so. There is nothing in the record except the opinion of the court tending to show his qualifications. Where, from the very nature of things, the verdict must be based, to a large extent if not entirely, upon the opinions of those familiar with property values, it is important that the jury should determine the credibility of a witness from the testimony and not,
For the reason just assigned, the judgment of the trial court will be reversed and a new trial ordered, with directions to submit the question of damages to the fee of the property, if any, to the jury, the damage to the leasehold being determined by the verdict in favor of the mattress company.
Rudkin, C. J., Fullerton, and Gose, JJ., concur.