Alfred Atmore Pope Foundation, Inc. v. New York, N.H. & H. R. Co.

Decision Date25 July 1927
CourtConnecticut Supreme Court

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Action by the Alfred Atmore Pope Foundation, Incorporated, against the New York, New Haven & Hartford Railroad Company, for damages from fires caused by the engines of the defendant and for injunctive relief. Defendant's demurrer was in part overruled and in part sustained, and motion to strike out denied; plaintiff's demurrer to certain portions of the answer was sustained in part. Judgment for the plaintiff for $10,000, with interest and costs, and injunctive relief denied, from which the plaintiff appealed. Error and new trial ordered.

Thomas Hewes and Richard H. Phillips, both of Hartford, for appellant.

James W. Carpenter, of Hartford, for appellee.



The plaintiff was incorporated in this state in 1918. In January, 1922, it received and still holds the title to a tract of about 2,200 acres of land, located in part in Avon and in part in Farmington in this state. About 1,700 acres of this tract was woodland and 500 acres farm land.

The tracks of the defendant's Northampton division extend along the west side of the plaintiff's land and across a portion of it on the northerly end, and on April 28, 1922, April 29, 1922, and May 10, 1922, three separate fires were set upon the wooded portion of this tract, by sparks from defendant's locomotives. As a result of the damages caused by these fires, the plaintiff brought the present action, each of the first three counts of the complaint describing one of the fires referred to and asking compensation in damages.

A fourth count was added for the purpose of obtaining equitable relief by injunction against the risk of future fires from the same source. After demurrer and motion to erase had been filed by the defendant and heard and decided by the court, the defendant made answer by denial and set up certain special matters of defense to which the plaintiff demurred. This being heard and determined, there were various amendments to the pleadings, issue was joined, and the case was heard at length by the court, and, the statutory liability of the defendant being admitted (General Statutes, § 3785), judgment was given for the plaintiff for $10,000 damages plus interest and costs, but plaintiff was denied injunctive relief. This appeal was thereupon taken by plaintiff.

We shall first consider one of the five claimed errors in the action of the superior court upon plaintiff's motion to correct the finding, by striking out paragraph 37 thereof, together with the exception to the admission of the tax lists in evidence. Paragraph 37 reads:

" Both before and after the fires of 1922 plaintiff admitted in its sworn reports to the assessors of the towns of Farmington and Avon that the total value of its entire tract of land was approximately $10 per acre."

The fact to be found was the value of the land, and what some witness said or admitted on that point was merely evidential. The recital of evidential facts has no proper place in a finding. The motion to strike out paragraph 37 should have been granted.

The plaintiff's objection to the admission of the tax lists was valid and their admission erroneous. These tax lists were for the years 1921, 1922, and 1923, which showed an " owner's valuation" of $10 per acre, and it was defendant's claim that they were prepared and filed by one Arthur, who was authorized by the plaintiff to do so. The certified testimony of Mrs. Riddle, who owned the property before it was transferred to this plaintiff, was in part as follows:

" Q. Well now, Mrs. Riddle, who was this--did you have a secretary by the name of Arthur?

A. Yes.

Q. And did he have charge of entering your properties in the--

A. Yes.

Q. And valuing it and so on?

A. Yes.

* * *

Q. You authorized him to go out and file these returns with the tax officer on behalf of you?

A. Yes; he was under Mr. Swenson.

Q. And he was authorized to speak for you?

A. Yes."

The lists for the three years were admitted over the plaintiff's objection. Later Mrs. Riddle was recalled as managing director of the plaintiff corporation and testified that neither she as an individual nor as managing director, nor the plaintiff corporation, authorized Arthur to place the owner's valuation on these lists. It will be observed that Mrs. Riddle, in the early part of the examination, admitted that Arthur was authorized by her to value her property. As she owned it in 1921, when the first list went in, the trial court could properly have treated this admission, if it assumed she understood the scope of the question, as relating to her own list of 1921. It clearly is not an admission that Arthur was the authorized agent of this plaintiff corporation which owned the property when the 1922 and 1923 lists were filed, and Mrs. Riddle expressly states that neither she as managing director nor the corporation ever gave Arthur such authority. There is no evidence before us which contradicts her statement, nor any evidence whatever that Arthur was authorized by this plaintiff to make a valuation. The trial court was not justified, upon the evidence certified, in assuming Arthur had the authority of the corporation to say how much the property was worth and that the lists of 1922 and 1923 contained admissions of the corporation that the land was worth but $10 per acre. Even if it had appeared that Arthur was authorized by the plaintiff to file the lists, the valuation was not a necessary part of the list, and further proof would be necessary to show the agent's authority to put a value on the land.

Where a husband, as agent for his wife, filed a tax list of her property, and it was offered to contradict the plaintiff's testimony as to its value, we said:

" The evidence offered did not tend to contradict the plaintiff. The husband was not her agent to put a valuation upon the property, but simply to give a list of the property. He was required to make oath to the list but not to the valuation." Martin v. New York & N.E. R. Co., 62 Conn. 331, 343, 344, 25 A. 239, 242.

The " owner's valuation" is not required in the oath prescribed by law. General Statutes, § § 1137, 1138.

While the lists were offered in the present case solely to show admissions, the same principles apply as in the case cited. The importance of this ruling is shown by the statement made by the trial court in the memorandum of decision:

" There is, however, a wide difference of opinion between plaintiff's and defendant's experts as to value. The testimony of the defendant's experts in this respect seems to be strengthened by the estimates of the plaintiff itself as evidenced by its statements in its tax lists."
" The rule is well established that for injuries of this character the measure of damages is the diminution in value of the premises caused by the fire."
" It appears * * * that, while the plaintiff now claims its land to have been worth in the neighborhood of $80 an acre, it has through its agent sworn to a value of $10 an acre in its tax list."

It is obvious that the trial court gave much weight to this evidence in reaching its conclusion as to the extent of the damages, and it appears from the record and from the briefs of both counsel that the amount of the damages is a crucial point of this appeal, taken by the prevailing party.

The treatment of these lists as admissions by the plaintiff corporation, that the property injured was of small value, and the weight attached to it by the trial court could not have had other than a seriously prejudicial effect upon the rights of the plaintiff, and their admission was reversible error. Since there must be a new trial, we do not deem it necessary to review many of the questions raised by the appeal and ably and fully discussed in brief and argument on both sides. There is, however, one question of supreme importance, relating to the damages, which sharply differentiates the contentions of counsel at all points, and directly or indirectly enters into many of the reasons of appeal. We refer to the measure of damages; and, since this question will necessarily arise upon further hearing of the case, we shall here consider it.

Three paragraphs of the finding are to the effect that in 1922, when the fires in question occurred, the 1,700 acres of woodland had not been consolidated with the 500 acres of farm land originally bought for school purposes, so as to make the entire tract a unit having peculiar value because of its common ownership, that neither of these tracts had at that time any peculiar value as school site, building or home site, country estate, or fish and game club, and that the trees on the burnt portion had no peculiar value other than that which is common to woodland tracts of similar types, namely, for timber, cordwood, fuel, and conserving of the soil, ponds, and streams.

These are conclusions of fact, and plaintiff claims they are illogically drawn from the subordinate facts, and that they are the result of incorrect applications of law to the subordinate facts. That they were the basis upon which the court fixed the damages is shown by the finding:

" The total diminution in the market value of the plaintiff's land as a result of the fires was $10,000."

The plaintiff acquired all this property in January, 1922, before these fires took place, and it was " a tract of land containing about 2,200 acres." The plaintiff was incorporated in 1918, with the object and purpose to establish and maintain a memorial, the form of which was to be--

" an academy for the

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