McCormick v. Parriott

• Decision Date: 01 May 1905
• Citation: 33 Colo. 382,80 P. 1044
• Parties: McCORMICK et al. v. PARRIOTT et al.
• Court: Colorado Supreme Court

80 P. 1044

33 Colo. 382

McCORMICK et al. v. PARRIOTT et al.

Supreme Court of Colorado

May 1, 1905

Appeal from District Court, Clear Creek County; A. H. De France Judge.

Action by James E. Parriott and another against W. P. McCormick and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Bullis & Williams, for appellants.

E. M Sabin and F. L. Collom, for appellees.

GUNTER J.

This was an adverse suit, involving as its material issue the value of assessment work done by appellants (defendants) for 1899. The work consisted of two shafts--one upon each claim. The evidence as to its value was conflicting. A view was permitted, as provided by Mills' Ann. Code, § 188a. The assessment work was then in practically the same condition as when performed. In the course of argument to the jury, counsel for appellees, in effect, said that the jury, having seen the work, could say whether it was of the value of $100. This statement was objected to by counsel for appellants upon the ground that the jury had no right to consider conditions as revealed by the view, in determining the case. It is unnecessary for us to discuss the question whether the knowledge thus obtained should be given the effect of substantive evidence. The authorities are at one that what the jurors see, relevant to the issue to be decided by them, is something to be considered by them in understanding, applying, and weighing the evidence. Fleming v. Daly, 12 Colo.

App 439, 449, 55 P. 946; Medano Ditch Company v. Adams, 29 Colo. 317, 321, 68 P. 431. The language of counsel was not beyond this limit.

2. Testimony was received of the amount paid for doing the assessment work. The evidence was conflicting as to the value of this work. The amount paid for its performance was admissible, as bearing upon its value. Quimby v. Boyd, 8 Colo. 194, 208, 6 P. 462. Further, the court guarded against possible prejudice by the admission of this evidence in charging that, in determining the value of the work done, the reasonable value thereof, and not the price paid therefor, should govern.

3. Instruction No. 4 is complained of as assuming the existence of an issuable fact and as being argumentative. It is not subject to the first ground of objection, but it is argumentative, and for this reason should not have been given. Burnham v. Jackson, 1 Colo.App. 237, 248, 28 P. 250. 'The purpose of the charge is to state and explain the law, not to carry on a process of general reasoning; and therefore the practice of injecting an argument into the instructions is considered a reprehensible one, and one which should not be encouraged, as it only tends to confuse the jury, protract the trial, and render more uncertain a fair and just disposition of the cause.' Ency. of Pl. & Pr. vol. 11, p. 142; Thompson on Trials, vol. 2, § 2301. It is not...