Uhe v. Chicago

Citation3 S.D. 563,54 N.W. 601
CourtSupreme Court of South Dakota
Decision Date24 February 1893
PartiesUHE, Plaintiff and respondent, v. CHICAGO, M. & ST. P. RY. CO., Defendant and appellant.

Appeal from Circuit Court, Turner county.

Reversed

Winsor & Kittredge, Sioux Falls, SD

Attorneys for appellant.

Palmer & Rogde, Sioux Falls, SD

Attorneys for respondent.

Opinion filed Feb. 24, 1893

BENNETT, P. J.

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 resulted in a verdict sustaining the allegations of the complaint, and judgment was rendered for the amount of the property alleged to be destroyed. From 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. Chicago, M. & St. P. Ry. Co.,(1893) 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 be 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 plaintiff could not be held responsible for a voluntary remark, not responsive to a question, made by witness. The objection was sustained by the court. By an examination of the question, and answer of the witness, it will be seen the witness did not give or attempt to give any of the conversation had between Mr. Kennedy and himself on the cross-examination. Therefore the rule of evidence that, when a person calls out a portion of a conversation, the opposite party is entitled to have the benefit of the full conversation, does not apply. The object of the cross-examination was not to bring out any conversation the witness had with Mr. K., but to ascertain the first period of time when the defendant had knowledge of the fact that the witness knew anything of the case, which he located by a conversation he had with Mr. K. after the verdict in the Haugen case was returned. What was said between them at that time in relation to that case was entirely irrelevant and immaterial, and the conversation was only referred to by the witness to establish the fact that he knew anything material for the defense. The court did not err in sustaining the objection of plaintiff.

The next point for consideration involves the construction of section 5049, Code Civil Proc., which reads as follows:

“All 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....

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