Hervey v. City of Providence

• Decision Date: 07 June 1926
• Docket Number: No. 6025.,6025.
• Citation: 133 A. 618
• Parties: HERVEY v. CITY OF PROVIDENCE.
• Court: Rhode Island Supreme Court

133 A. 618

HERVEY

v. CITY OF PROVIDENCE.

No. 6025.

Supreme Court of Rhode Island.

June 7, 1926.

Exceptions from Superior Court, Providence and Bristol Counties; George W. Greene, Judge.

Petition by William H. Hervey against the City of Providence. On respondent's exceptions after award to plaintiff. Exceptions in part sustained, and case remitted for new trial.

Argued before SWEETLAND, C. J., and RATHBUN, SWEENEY and BARROWS, JJ.

Prank L. Hanley, Cooney & Cooney, and Raymond E. Cuffe, all of Providence, for petitioner.

Elmer S. Chace, City Solicitor, and Herbert E. Eklund, Asst. City Solicitor, both of Providence, for respondent.

BARROWS, J. Heard on exceptions of the city of Providence after an award to plaintiff of $S,280 on a petition for assessment of the value of his farm taken by the city in condemnation proceedings; $6,000 was awarded as the market value, and interest of $2,280 was added thereto.

Twenty-two exceptions were taken on motions and rulings in the trial of the case. The first related to excessive damages. The twenty-second covers thirteen exceptions to the charge, but, in view of our conclusion that a new trial must be had, we do not feel it necessary to analyze and pass upon the matters covered in these two exceptions. All of the other exceptions, apart from those numbered 3, 4, 5, and 6, we consider without merit and overrule. Some of these will receive consideration in the general discussion of the case.

The points made by the city are that the court erred: First, in excluding evidence relating to seven sales of farm property, each of which defendant claims was similar to the Hervey farm; second, in permitting a builder to testify as to the structural value of the buildings apart from the land; third, in criticizing in the charge to the jury defendant's testimony relative to admitted sales of similar property as "not a high class of evidence."

1. The court excluded evidence of sales of property not shown to be "substantially similar to the property in question." Similarity was construed rather narrowly, but sale prices of farms which, in the court's opinion, were shown to be similarly situated were offered by defendant and admitted in at least six instances. Trior to the admission of such testimony, a question always arose whether the farms were so similarly situated as to be of aid to the jury in determining value in the present case. That preliminary question was addressed to the discretion of the court. Shattuck v. Stoneham Branch R. R., 6 Allen, 115; Hunt v. Boston, 152 Mass. 168, 25 N. E. 82; Teele v. Boston, 165 Mass. 88, 42 N. E. 506; cf. Daigneault v. City of Woonsocket, 18 R. I. 378, 28 A. 346. A considerable latitude must oe allowed in determining similarity. Remoteness alone will not preclude the evidence, as held in Paine v. Boston, 4 Allen, 168, but the court says: "If, considering all the circumstances, the court rejects the evidence, the ruling is not open to exception." Failure to agree with the defendant on whether the property is similarly situated is not error. If there be ground for a reasonable difference of opinion, the trial justice must exercise the controlling judgment, and the right of the defendant to except thereto can arise only from an improper exercise of the trial court's discretionary power. Levenson v. Boston Elevated Ry., 191 Mass. 75, 77 N. E. 635.

The situation is analogous to those cases where the trial justice passes on the qualifications of an expert witness before his testimony is admitted. The preliminary question is for the court; the weight to be given to the testimony is a matter for the jury. Eastman v. Dunn, 34 R. I. 456, 83 A. 1057. Where evidence may be of some slight logical probative value, but is remote in its bearing upon the case or likely to mislead the jury or complicate the case, it is properly ruled out. Petition of Herbert O. Thompson, 127 N. Y. 463, 28 N. E. 389, 14 L. R. A. 52; Amoskeag Mfg. Co. v. Head, 59 N. H. 332. While we are not certain that we should have agreed with the rulings of the trial justice in each particular instance, we cannot say that the ruling in any instance was "palpably or grossly wrong." Eastman v. Dunn, supra. We overrule all exceptions relating to refusal to admit evidence of sales which the defendant offered as similar.

2. Nor was evidence admissible of comparisons of the Hervey location, barns, buildings, or land with the same on other farms. The witness should testify to the facts. The making of comparisons is a conclusion to be drawn by the jury. Shattuek v. Stoneham Branch R. R., supra.

3. The measure of damages in cases of this type is the market value of the property. Hall v. City of Providence, 45 R....