Andrews v. Youmans

• Decision Date: 12 April 1892
• Citation: 82 Wis. 81,52 N.W. 23
• Parties: ANDREWS v. YOUMANS.
• Court: Wisconsin Supreme Court

82 Wis. 81

52 N.W. 23

ANDREWS

v.YOUMANS.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Action by F. S. Andrews against H. A. Youmans to recover damages for cutting and removing shade and shelter trees. Judgment for plaintiff. Defendant appeals.

The other facts fully appear in the following statement by PINNEY, J.:

After this action was before this court, and the right of the plaintiff to recover for cutting down the trees in question was determined, (78 Wis. 56, 47 N. W. Rep. 304, where the case is stated,) it was tried on the merits, and a verdict given for the plaintiff for $100 damages, and from a judgment thereon the defendant appeals. The cause of action was for cutting down and carrying away 14 shade and shelter trees, standing at the side of the highway along plaintiff's lot, consisting of half an acre of land near the depot at Mukwonago, alleged to be valuable to the lot for a stockyard, for which the plaintiff had purchased it, and designed to, and had used the lot. After the plaintiff had described in his testimony the situation of the lot and the location of the trees, their size, etc., he called four witnesses, all farmers, to testify as to their value. Each of these witnesses described the trees, their size, character, and location, and stated, in substance, that their situation was such as to make them of value, and serve as a shelter and windbreak for the stockyard. Each of them was asked, considering that the lot was bought for and used as a stockyard, what, in his judgment, the trees were worth to the owner as a shelter or windbreak, and, under defendant's objection that the expression of such opinion would be incompetent, and trenching on the province of the jury, they were allowed to testify, giving, respectively, their opinion as to the value of the trees, at $135, $100, $112, and $300. The value of the trees cut into firewood was $6.50. The defendant produced other evidence as to the value of the trees, and when he opened his case requested the court to order a view of the premises by the jury, but this was denied. The defendant assigns as error (1) the refusal of the court to grant a view; (2) the ruling permitting the opinions of the witnesses as to the value of the trees to go to the jury, the defendant insisting that the jury should form its own estimate of damages from the facts appearing in evidence.T. W. Haight, for appellant.

D. H. Sumner, for respondent.

PINNEY, J., ( after stating the facts).

1. The granting of a view of the premises is a matter resting in the discretion of the trial court, and refusal to grant it cannot be assigned as error. Section 2852, Rev. St.; Pick v. Hydraulic Co., 27 Wis. 433;Boardman v. Insurance Co., 54 Wis. 364, 11 N. W. Rep. 417.

2. Ordinarily a witness cannot give his conclusions from facts, but must state the facts, leaving the drawing of conclusions to the court and jury, but an opinion can be given in evidence by a nonexpert as to matters with which he is specially acquainted, but which cannot be specifically described. In speaking of the admissibility of such opinions in evidence, Judge Redfield says: “Opinions of witnesses derived from observation are admissible in evidence where, from the nature of the subject under investigation, no better evidence can be obtained. No harm can result from such a rule, properly applied. It opens the door for the reception of important truths, which would otherwise be excluded, while at the same time the tests of cross-examination, disclosing the witness' means of knowledge and his intelligence, judgment, and honesty, restrain the force of the evidence within reasonable limits, by enabling the jury to form a due estimate of its weight and value.” Redf. Wills, 136-141. Opinions concerning matters of daily occurrence, and open to common observation, are received from necessity, (Com. v. Sturtivant, 117 Mass. 122, 133, 137;) and the ground upon which they are admitted in such cases is that from the very nature of the subject in issue, it cannot be stated or described in such language as will enable persons not eyewitnesses to form an accurate judgment in regard to it, (De Witt v. Barly, 17 N. Y. 340;Snyder v. Railway Co., 25 Wis. 66.) No language which an ordinary witness could command, by mere description of the trees in question, and their location on the lot, would serve to convey to a jury the information and assistance in arriving at...