3 S.D. 563 | S.D. | 1893
The complaint in this case alleges that the defendant negligently destroyed by fire the property of the plaintiff. The answer is a general denial. A trial before a jury re-' suited in a verdict sustaining the allegations of the complaint, and judgment was rendered for the amount of the property alleged to be destroyed. Prom this judgment the defendant appeals.
The assignment of errors raises three questions for determination: First. What is the proper measure of damages where-growing trees are negligently destroyed by fire, and how shall it be determined? Second. Was it error in refusing to allow the witness Stone to give all of'a conversation, a part of which it is alleged had been brought out on examination ? Third. Did the court err in denying defendant’s motion to open the judgment for the purpose of. allowing defendant to incorporate, prior to the judgment, an exception to that part of the charge of the court given to the jury which relates to interest upon the amount they found due the plaintiff.
So far as the first question is concerned, it has been settled in the case of Bailey v. Railway Co., 3 S. D. 531, 54 N. W. Rep. 596, (decided at the present term,) where the same question in relation to the measure of damages was raised. The reasoning and conclusion in that case, upon this point, is conclusive, and we must hold this assignment not well taken.
As to the second question, — whether there was error of the court in not permitting the witness Stone to detail all of a conversation, a part of which it was alleged had been brought out by the plaintiff on examination. - It appears from the abstract that a witness for the defense, by the name of Stone, on cross-examination, stated that “the first time the company knew of my knowledge of this case was after the verdict had been brought in in the Haugen case. Mr. Kennedy and I was talking of the case, and he mentioned some of the testimony.” On redirect examination the witness was asked to state the balance of the conversation he had with Mr. Kennedy on the afternoon of the Haugen trial. The plaintiff objected to the witness answering, for. the reason that the'plaintiff did not call for the conversation said to have-occurred between Mr. Kennedy and the witness, and the plain
The next point for consideration involves the construction of section 5049, Code Civil Proc., which reads as follows: “AH' instructions given by the judge shall -be read to the jury in the following order: First, defendant’s instructions by defendant’s' counsel; second, plaintiff’s instructions by plaintiff’s counsel; third, instructions given by the judge of his own motion, if any, by the judge giving the same; and all instructions so read shall be taken by the jury in their retirement, and returned into court with their verdict. Exceptions to the giving or refusing any instruction, or its modification or change, may be taken at any time, before the entry of final judgment in the case.” On the 12th day of February, 1891, the court made the following order in the case; “it is ordered that defendant have sixty days time in which to prepare and serve notice of intention and motion for new trial herein, and that all proceedings be stayed in the mean time.” On the 27th day of February, 1891, judgment was entered upon the' verdict in favor of the plaintiff and against the defendant. On the 10th day of June following, the defendant gave notice that he
So far as the question of the manner and regularity of giving the instructions to the jury is concerned, we fail to see from the record how we can determine that question. There is nothing found in the record which will warrant us in saying that the instructions were not given to the jury explicitly, as pointed out by the statute; that is, that the defendant read its instructions to the jury, and that plaintiff read his, and that the court’s were reduced to writing and read to the jury, and that the instructions so read were taken by the jury on their retirement, and returned into court with their verdict. No error on this point appears in the record. It cannot be presumed. All reasonable presumptions are in favor of the regularity of the proceedings of the court below, and the party alleging error must specifically point it out. The error, however, in giving the instructions in relation to the assessment of interest was substantial in its character, and will render it necessary to vacate the judgment, and grant a new trial, unless the plaintiff shall elect to deduct the amount of the interest upon the value of the property destroyed. This is easy of as