Indianapolis And Cincinnati Traction Company v. Wiles

• Decision Date: 10 March 1910
• Docket Number: 21,599
• Citation: 91 N.E. 161,174 Ind. 236
• Parties: Indianapolis and Cincinnati Traction Company v. Wiles et al
• Court: Indiana Supreme Court

91 N.E. 161

174 Ind. 236

Indianapolis and Cincinnati Traction Company v. Wiles et al

No. 21,599

Supreme Court of Indiana

March 10, 1910

Rehearing Denied May 13, 1910, Reported at: 174 Ind. 236 at 243.

From Fayette Circuit Court; George L. Gray, Judge.

Condemnation proceedings by the Indianapolis and Cincinnati Traction Company against Joseph B. Wiles and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Florea & Broaddus and Smith, Cambern & Smith, for appellant.

Reuben Conner, Lon Conner, Allen Wiles and Raymond Springer, for appellees.

OPINION

Montgomery, J.

Appellant instituted this action to condemn and appropriate a portion of appellees' lands for a right of way for an electric railroad. Appraisers were appointed, and to their award of damages both parties excepted. The cause, upon exceptions as to the damages sustained, was submitted to a jury for trial and a verdict for $ 820 returned in favor of appellees.

The overruling of appellant's motion for a new trial has been assigned as error. The grounds for the motion relied upon are, error of the court in denying to appellant the right to open and close in the introduction of evidence and in argument to the jury, in excluding exhibit B, offered by appellant, in refusing to allow a witness to state what he would pay for certain parcels of appellees' land after the construction of the proposed road, and in giving and refusing to give certain instructions.

It is first insisted that the trial court should have permitted appellant to assume the burden of the issue, and should have given it the right to open and close in the presentation of evidence and the argument. The only issue for trial was the amount of damages, if any, to which appellees were entitled, as the result of the appropriation of their lands described in the complaint. The law is well settled in this State, that upon such issue the landowner is entitled to the right to open and close, and this rule was not changed or affected by the eminent domain act of 1905 (Acts 1905 p. 59, Acts 1907 p. 306, §§ 929-940 Burns 1908). Wilson v. Talley (1896), 144 Ind. 74, 42 N.E. 362; Rogers v. Venis (1894), 137 Ind. 221, 36 N.E. 841; Conwell v. Tate (1886), 107 Ind. 171; Indiana, etc., R. Co. v. Cook (1885), 102 Ind. 133, 26 N.E. 203; Peed v. Brenneman (1883), 89 Ind. 252; Grand Rapids, etc., R. Co. v. Horn (1873), 41 Ind. 479; Evansville, etc., R. Co. v. Miller (1868), 30 Ind. 209; Douglas v. Indianapolis, etc., Traction Co. (1906), 37 Ind.App. 332, 76 N.E. 892; Indianapolis, etc., Traction Co. v. Shepherd (1905), 35 Ind.App. 601, 74 N.E. 904; Consumers' Gas Trust Co. v. Huntsinger (1895), 12 Ind.App. 285, 40 N.E. 34.

Appellee Joseph B. Wiles was a witness in his own behalf, and testified to damages, aggregating $ 1,105, resulting from the appropriation. Appellant offered in opposition to said testimony a written contract signed by said Wiles and others, in which they agreed to convey to appellant, for the sum of $ 218, substantially the same rights sought to be appropriated. The writing was excluded, and appellant complains of this ruling.

Appellant's counsel say that no reason was assigned, and that they do not know why the proffered evidence was rejected. We may add that we are left to surmise the theory upon which it was offered and regarded by them as admissible. The admissions of a person against his interest are ordinarily competent evidence in favor of his adversary. If, in this case, Joseph B. Wiles had been the sole owner of the lands involved, the paper would doubtless have been competent as an admission. One tract of land was owned jointly by Joseph B. Wiles and George Wiles, and the other by Joseph B. Wiles, George Wiles and Ross Wiles. It is manifest therefore that this admission, if received as evidence against Joseph B. Wiles alone, and given any weight, would have reduced the amount of recovery in which innocent persons must necessarily share. The damages were assessed as an entirety as to each tract of land, and any evidence received against Joseph B. Wiles must, of necessity, be considered by the jury, and operate pro tanto against his coparties. In such circumstances the admissions of a person acting for himself alone, made outside the presence of the other parties in interest, are incompetent. Hayes v. Burkam (1879), 67 Ind. 359; Roller v. Kling (1898), 150 Ind. 159, 49 N.E. 948; Carpenter's Appeal (1902), 74 Conn. 431, 51 A. 126; Hertrich v. Hertrich (1901), 114 Iowa 643, 87 N.W. 689, 89 Am. St. 389; Britton v. County of Worcester (1877), 123 Mass. 309; O'Connor v. Madison (1893), 98 Mich. 183, 57 N.W. 105; Prewett v. Coopwood (1855), 30 Miss. 369; Wood v. Carpenter (1902), 166 Mo. 465, 66 S.W. 172; Eakle v. Clarke (1869), 30 Md. 322.

The amount of damages sustained by appellees was the question at issue, and this was to be shown by the testimony of competent witnesses. The attempted purchase had failed and had been abandoned, and the writing was neither a contract fixing the amount of recovery, nor primary or substantive evidence upon the question on trial. Appellee Joseph B. Wiles might properly have been asked on cross-examination, for the purpose of breaking down or lessening the force of his testimony as to damages, whether he had not previously agreed to convey to appellant the lands and rights herein sought to be appropriated, upon like or similar conditions, for a consideration of $ 218. Indianapolis, etc., Traction Co. v. Shepherd, supra. The witness might then deny or affirm the assumed fact. If the fact were admitted, an opportunity of explaining the disparity in his claims would have been afforded. If the question were answered in the negative, the writing with proper preliminary proof might have been competent impeaching evidence. No error was committed in excluding the writing as offered in evidence.

Appellant's witness Murphy testified as to the value of the several tracts of land before and after the construction of the road. Appellant sought to show further that the witness would be willing to buy the parcels of land south of the road at the valuations fixed in his testimony. The court properly excluded the offered evidence. The damages are to be determined by the fair cash market value of the land before and after the appropriation of which complaint is made. It is manifest that the practice proposed would lead to grave abuses. The witness could not be bound by such a statement; and the price, whether too high or too low, which some particular person might be willing to pay, for reasons of his own, cannot become the true standard of value. Chicago, etc., R. Co. v. Kelly (1906), 221 Ill. 498, 77 N.E. 916.

Appellant requested the court to give a number of instructions setting...