Underwood v. Waldron

Citation33 Mich. 232
CourtSupreme Court of Michigan
Decision Date11 January 1876
PartiesJane B. Underwood v. Henry Waldron and another

Heard January 4, 1876; January 5, 1876

Error to Hillsdale Circuit.

This was an action of trespass on the case brought by plaintiff in error against defendants in error for injuries to the walls of her brick building, caused by water flowing from defendants' roof against it. The trial was by jury, and the verdict for defendants.

Judgment reversed, with costs of this court, and a new trial ordered.

A Dickerman, Charles S. May and G. V. N. Lothrop, for plaintiff in error.

E. L & M. B. Koon and George A. Knickerbocker, for defendants in error.

OPINION

Cooley, Ch. J.

I. Some of the questions which were put to the witnesses called by the plaintiff, in order to show that the injury to her wall must have been caused by water flowing from defendants' building, and which were ruled out by the circuit judge, seem to have been unobjectionable, and their rejection was error, unless the same witnesses were allowed to answer other questions of corresponding import. This seems to have been the case in some instances. We do not deem it important to examine the several questions in detail, but as the case is to go back for a new trial, it will be sufficient to lay down the general principle which should govern if similar evidence should again be offered.

The case was one of injury to the foundation walls of a building, some portion of which it would seem to have been conceded on both sides must have been caused by water. The plaintiff's case was, that this water was thrown upon her walls by the roof of the defendants' building constructed adjoining, with only some four inches between them, The theory of the defendants seems to have been, that the water which caused the injury was from the wet and springy soil on which the building stood, and from an accumulation that, for a time at least, had been allowed in the plaintiff's cellar. In support of her own view of the case the plaintiff called masons and others, and desired them to testify, from their knowledge, experience and observation, whether the injury to the building was caused by water from the inside, or by water poured from above upon the building on the outside. We say this was what she appeared to seek by the questions proposed, though none of them were put exactly in this form, and some of them were probably objectionable, because comprehending something more which was not properly within the scope of a question calling for mere opinion.

The general inquiry which was proposed to be gone into did not call for opinions on matters of science, but on matters on which any man who has observed the effect of water upon walls might be supposed to be competent to express an opinion. The effect of water in disintegrating the mortar of a wall is no more a matter of science than is the effect of a running stream in excavating its banks at its angles; the effect is one that any person may have occasion to observe, and that persons in all occupations may be competent to express opinions upon. One man's observation and experience may make his opinion more valuable than that of another, but this may or may not be because the observation and experience have been connected with some particular employment.

Whether there will be in any particular case any marks or indications such as fairly can justify opinions, is a question which only the facts in that case can determine. If a man only sees the plaster of a wall disintegrated and destroyed by water, with nothing but the disintegration to indicate from whence the water came, it is obvious there can be no basis for an opinion on that subject, because water coming from any source must or may cause the result he sees. To ask him, then, his opinion whence the water came, would be unwarranted, because plainly he could have no opinion except such as he must form on facts or opinions communicated by others, or derived from something besides that which he is supposed to be giving an opinion upon. But if in addition to the fact of injury, there are other facts indicating that the water came from a particular direction, or must have been applied in a particular way, it would be unreasonable to exclude opinions upon those indications. True, the indications themselves ought to be proved; and it is quite true also, that the jury are authorized to draw their own deductions from them; but no witness can fully present the appearances as they were before his eyes; and to take his testimony of what he saw, without his opinion, would seldom prove fully satisfactory, and would often be misleading. Indeed, in many cases it is difficult to separate a description of the indications from an opinion upon them; nor is a witness always expected to do so. If a man were to come upon the track of a recent rain or snow storm, he would hardly be stopped in giving an account of it as a witness if he were to say among other things that the storm appeared to have come from a particular direction; because such a storm, as every one knows, must usually, for a time, leave behind it some very conclusive indications of the direction it had taken.

Of course in any such case it should appear that the witness had some basis of observation on which to justify his opinion but when he has stated the peculiar facts, his opinion may properly be called for. When called for, however, it should be confined to an opinion upon the very facts which have come under his observation, and the questions intended to elicit it ought to be framed with that view, and be calculated to exclude the influence of every thing else upon the reply. A man may find A's wall injured and conclude that B committed the injury, because he knows B and A are enemies. Now, as the law will permit no one to testify to his opinion what B would be likely to do because of his hatred, neither will it permit a witness, in testifying to an injury A has received, to take this enmity into account in judging whence the injury came The enmity as an independent fact may in some cases be put before the jury, but the witness must discard it from consideration when testifying. We speak of this with a view to more caution on a new trial, as we think some of the questions put before were carelessly framed, and did not by their terms...

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19 cases
  • Bowman v. Humphrey
    • United States
    • Iowa Supreme Court
    • November 15, 1906
    ... ... the resulting damage as was fairly attributable to the ... defendant's wrong. Gould v. McKenna, 86 Pa. 297 ... (27 Am. Rep. 705); Underwood v. Waldron, 33 Mich ... 232; Robinson v. Baugh, 31 Mich. 290; Railroad ... Co. v. Smith, 64 F. 679 (12 C. C. A. 384, 27 L.R.A ... 131); Thomas ... ...
  • Van Deusen v. Newcomer
    • United States
    • Michigan Supreme Court
    • January 14, 1879
    ...admissibility of evidence upon professional and hypothetical questions, cited Kempsey v. McGinniss, 21 Mich. 123; Underwood v. Waldron, 33 Mich. 232; Hitchcock v. Burgett, 38 Mich. As to the incompetency of evidence as to the mental condition of the plaintiff at the time of the trial, 1 Gre......
  • Bowman v. Humphrey
    • United States
    • Iowa Supreme Court
    • November 15, 1906
    ...much of the resulting damage as was fairly attributable to the defendant's wrong. Gould v. McKenna, 86 Pa. 297, 27 Am. Rep. 705;Underwood v. Waldron, 33 Mich. 232;Robinson v. Baugh, 31 Mich. 290;Railroad Co. v. Smith, 64 Fed. 679, 12 C. C. A. 384, 27 L. R. A. 131; Thomas v. Kenyon, 1 Daly (......
  • North Bend Lumber Co. v. City of Seattle
    • United States
    • Washington Supreme Court
    • August 8, 1921
    ... ... 335, 40 P. 863, 50 ... Am. St. Rep. 502; Gulf, C. & S. F. Ry. v. Clay, 28 ... Tex.Civ.App. 176, 66 S.W. 1115; Underwood v ... Waldron, 33 Mich. 232; Fritz v. Ry. Co., 22 ... Minn. 404; Kellogg v. Railroad Co., 26 Wis. 228, 7 ... Am. Rep. 69; Cook v ... ...
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