Kiefer v. State Highway Commission

• Decision Date: 02 June 1970
• Docket Number: No. 234,234
• Citation: 47 Wis.2d 155,177 N.W.2d 66
• Parties: Roland KIEFER et al., Respondents, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 66

177 N.W.2d 66

47 Wis.2d 155

Roland KIEFER et al., Respondents, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant.

No. 234.

Supreme Court of Wisconsin.

June 2, 1970.

This is an appeal in a condemnation suit brought by the state from a judgment on a jury verdict in favor of the plaintiffs in the amount of $13,615, plus costs. The value of the taking found by the jury was based upon a partial taking of land belonging to Roland Kiefer and Lillian Kiefer, his wife, located on the corner of South 76th street and West Rawson avenue in the city of Franklin. This parcel of land with a frontage of 184 feet on West Rawson avenue and 185 feet on South 76th street had a one-family residence on the north portion and a gasoline filling station on the corner. On October 28, 1968, the state highway commission (commission) took a 10-foot strip of land along South 76th street and a 15-foot strip along West Rawson avenue. For this taking the commission awarded $13,135.

The Kiefers appealed and the jury found the fair-market value before taking was $61,750 and the fair-market value after the taking $35,000, making the value of the taking $26,750. Consequently, the court ordered judgment for the additional $14,229.08.

Robert P. Russell, Corp. Counsel, Joseph J. Esser, Asst. Corp. Counsel, Milwaukee, for appellant.

Peregrine, Schimenz, Marcuvitz & Cameron, S.C. and Hugh R. Braun, Milwaukee, for respondents.

HALLOWS, Chief Justice.

The state highway commission attempts to raise four issues: (1) The admissibility of expert testimony concerning damages because of an agreement between the Kiefers and a third party; (2) the admission of testimony of an expert witness concerning monetary loss for inconvenience; (3) the admissibility of testimony concerning a change in zoning; and (4) errors in instructions referring to loss of business and probability of rezoning. These issues cannot be raised on this appeal as a matter of right because no written motion for a new trial was made and they were not raised with any specificity in the trial court.

At the close of the trial, the attorney for the commission orally moved to set aside the verdict and for a new trial because of errors and stated he had not had time to go into the matter but the errors were certain items of argument, admissibility of certain evidence, and certain information and evidence and the verdict appeared to be biased and prejudicial. After the oral motion was denied, no effort was made to comply with sec. 270.49(3), Stats., which requires, 'All motions for new trials shall be reduced to writing and filed before being heard.'

As early as 1957 in Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 518, 80 N.W.2d 380, this court pointed out that where there is a trial to a jury no error of the trial court would be reviewable as a matter of right on appeal unless such error was the foundation for a motion for a new trial, if the error was of such a nature the trial court could correct by granting a new trial. The commission argues it has substantially complied with the section and with this requirement; we think not. The trial court need not work on a generalization of errors. State v. Escobedo (1969), 44 Wis.2d 85, 170 N.W.2d 709; see also Jonas v. Northeastern Mut. Fire Ins. Co. (1969), 44 Wis.2d 347, 171 N.W.2d 185; Withers v. Tucker (1965), 28 Wis.2d 82, 135 N.W.2d 776.

The motion for a new trial in this case...