Mancheski v. State, 160
| Decision Date | 01 December 1970 |
| Docket Number | No. 160,160 |
| Parties | Paul H. MANCHESKI et al., Appellants, v. STATE of Wisconsin, Respondent. |
| Court | Wisconsin Supreme Court |
This is a condemnation action involving property located in the town of Hull, Portage county, operated as a tavern and ballroom by appellants, Paul H. Mancheski and his wife, Evelyn M. Mancheski. The property, known as Johnny's Ballroom, had been purchased by appellants in March, 1951. The date of taking by the state was April 26, 1967. The reason for the condemnation was a beltline relocation.
On March 18, 1969, the appellants waived assignment to and hearing before the Portage County Condemnation Commission and appealed directly to the circuit court for Portage county from the award of damages for condemnation. On March 18, 1969, the action was commenced. On May 27, 1969, the jury awarded appellants $46,750. On June 24, 1969, judgment was entered awarding appellants $46,750, plus interest. From that judgment, appellants appeal.
John J. Haka, Stevens Point, Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, Roger Rouse and Douglas J. Klingberg, Wausau, of counsel, for appellants.
Crooks, Low & Earl, Wausau, for respondent.
Two issues are raised on this appeal: (1) Whether an appraiser who appraised the property as to fair market value but for tax purposes was properly permitted to testify as to fair market value of the condemned property; (2) Whether the trial court erred in permitting examination of the plaintiff as to net income received from operating the property condemned.
APPRAISER TESTIMONY.
One Donald Kegler was qualified by the state as an expert appraiser and cost control accountant. He had earlier been hired to appraise the property condemned for tax purposes. He was permitted to testify as to fair market value. Appellants objected contending that: (1) Kegler's appraisal was for tax purposes, not for testimony at trial in a condemnation proceeding; (2) Kegler's appraisal was based on state guidelines as to factors to be considered. The trial court ruled:
'* * * any testimony from this witness as to the tax assessment is not admissible and the Court will not allow this witness to testify as to the tax assessment itself; (that is) solely for tax assessment purposes.
'However, if this witness has made an appraisal and has an opinion as to the fair market value, the Court is going to allow him to testify in view of his qualifications here as an appraiser and cost control accountant.'
The ruling of the trial court is exactly right. There is no basis in law for indulging the suspicion that an expert witness' opinion as to the fair market value of a piece of property is to be affected or determined by the use to which such opinion is to be put. If there is basis in fact on occasion for exactly such suspicion, the situation is not improved by admitting expert testimony only where the expert knows that it will be used in a trial, and presumably, also knows on which side of the value controversy it will be used. Tailoring of opinion as to how it is to be used, and by whom, is an evil to be avoided, not a goal to be sought.
That the expert's opinion as to value was based upon a memorandum of a state agency as to factors to be considered is a proper subject of cross-examination. If improper factors were considered, Cross-examination can reveal that fact. The factors relied upon by an expert appraiser in reaching a conclusion as to fair market value of property are always a proper subject of inquiry, and, on occasion, of challenge. In the case cited by appellants, the reason for ruling out evidence of assessed valuation was that it represented the opinion of people not called as witnesses and not subject to cross-examination. 1 Here the trial court did not admit the tax assessment into the record, but did permit the witness, qualified as an expert, to testify as to fair market value, subject to cross-examination, which provided adequate opportunity to question and discredit factors considered by him in reaching his opinion as to value. The evidentiary value of his opinion was for the jury to decide.
INCOME EVIDENCE.
Error is claimed in the trial court permitting cross-examination of the plaintiff as to net income received from operating the condemned property. The general rule is that evidence of net income is inadmissible to establish fair market value. 2 Wisconsin follows this general rule. 3 While there are exceptions, 4 the general rule sees the amount of profits from a business on the property as dependent upon too many contingencies to be accepted as evidence of fair market value of the property. 5 However, such net income may be admitted under certain circumstances for certain purposes, including impeachment, refreshing the recollection of a witness, or where proper objection is not timely made.
The record here show the following sequence as to question asked, answers given and objections made. On cross-examination, the plaintiff was asked if he had shown a loss in operating the premises for every year of the past ten years. The plaintiff replied that he thought so but was not sure that he had. On objection was made. Then the plaintiff was asked as to a specific loss for the year 1967. The only objection made was that the year 1967 included and went beyond the time of the taking. The objection was overruled. When plaintiff was requested to being his tax returns to court, the plaintiff's counsel objected stating in part: 'I have no objection that he testified to...
To continue reading
Request your trial
-
Allison v. Ticor Title Ins. Co.
... ... In a diversity case, this court must apply the state standard of review to the district court's decision to deny or grant a directed verdict. Certain ... Leathem Smith Lodge, 288 N.W.2d at 812; Mancheski v. State of Wis., 49 Wis.2d 46, 181 N.W.2d 420, 422 (1970). Income evidence is generally ... ...
-
Waste Management of Wisconsin, Inc. v. Kenosha County Bd. of Review, 92-2951
...Lodge, Inc., 94 Wis.2d at 413, 288 N.W.2d 808 (citing 5 Nichols, Eminent Domain (3rd ed, section 19.3(5), at 354; Mancheski v. State, 49 Wis.2d 46, 50, 181 N.W.2d 420 (1970); and Lambrecht v. State Highway Comm., 34 Wis.2d 218, 226-27, 148 N.W.2d 732 (1967)). Although the language in Leathe......
-
State v. Johnson
...1, 121 N.W.2d 255, 122 N.W.2d 439; Schwalbach v. Antigo Elec. & Gas, Inc. (1965), 27 Wis.2d 651, 135 N.W.2d 263; Mancheski v. State (1970), 49 Wis.2d 46, 181 N.W.2d 420. Johnson claims he was not a supplier of the drug. The evidence shows that while Johnson, Bernstein, and Cook were at the ......
-
Leathem Smith Lodge, Inc. v. State
...Domain 273(3), at 1198-1201; Annot., 96 A.L.R.2d 666. These general standards were specifically followed in Mancheski v. State, 49 Wis.2d 46, 50, 181 N.W.2d 420 (1970), and Lambrecht v. State Highway Comm., 34 Wis.2d 218, 225-27, 148 N.W.2d 732 (1967). In each of these cases, the court stat......