Milwaukee Trust Co. v. City of Milwaukee

• Decision Date: 19 November 1912
• Citation: 138 N.W. 707,151 Wis. 224
• Parties: MILWAUKEE TRUST CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

151 Wis. 224

138 N.W. 707

MILWAUKEE TRUST CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 19, 1912.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by the Milwaukee Trust Company against the City of Milwaukee. From a judgment for plaintiff, defendant appeals. Affirmed.Daniel W. Hoan, City Atty., and Clifton Williams, Sp. Asst. City Atty., both of Milwaukee, for appellant.

Flanders, Bottum, Fawsett & Bottum, of Milwaukee, for respondent.

TIMLIN, J.

This is an action which originated in an assessment of damages for change of grade made by the board of public works of the city of Milwaukee in 1904. The action is, therefore, in substance and effect, an assessment of damages. Upon appeal from that tribunal to the circuit court, there was a special verdict as follows: “(1) What was the reasonable market value of plaintiff's property immediately before the grading of the street in front thereof? Answer: $3,000. (2) What was the reasonable market value of plaintiff's property immediately after the street in front thereof was filled to the newly established grade? Answer: $2,133.06. (3) What was the reasonable cost of putting plaintiff's property in substantially the same condition relative to the newly established grade as it was in before such change of grade? Answer: $866.94.” The respondent had judgment for the last-named sum and costs, and the city appeals to this court.

Of appellant's assignments of error, 1, 2, 3, 4, 7, and 8 relate directly or indirectly to the matter covered by question 3 of the special verdict, and remotely, if at all, to questions 1 and 2, namely, error in admitting evidence of loss of rentals; in refusing to strike out evidence of cost of raising house at a period four years after the assessment; in submitting question 3 to the jury; in refusing to submit question as to the necessityof raising houses and refusing to instruct the jury so as to exclude loss of rentals; in refusing to instruct that, because of said defect in the evidence of cost of restoration, question 3 should be answered “nothing.”

[1] But question 3 of the special verdict was improper, and the verdict is complete without it. It relates to an item of evidence and should not have been submitted. The true measure of damages was the difference in value as established by questions 1 and 2. This damage might exceed or fall short of or be identical with the cost found by the answer to question 3. Evidence relating to the loss of rentals after the assessment might have some bearing on the question of depreciation, but was not, and could not, be put forward as an independent ground of recovery.

[2] Evidence of the reasonable cost of putting the property in substantially the same condition relative to the new grade as it was in relative to the former grade is also competent as bearing upon the ultimate inquiry and true measure of damages. This cost should be estimated as of a time at or about the date of the assessment, otherwise it loses its value as evidence because the cost of labor and material may not be the same four years later as it was at the time of the assessment.

[3] While the court erred in refusing to strike out such evidence, we are not convinced that the error was prejudicial in a case like this in which there was other and direct evidence of the difference between the reasonable market value before and after the change of grade. Omitting question 3, we have a complete special verdict upon the question of damages. The surplus question 3, relating to an item of evidence, may be disregarded. The tendency of a special verdict is not always to promote reversals. In many cases it has the contrary effect. For illustrations: The erroneous admission of evidence, bearing upon a question of the verdict found in appellant's favor and having no bearing upon questions found against appellant, cannot be considered prejudicial. Lehman v. Chicago, etc., Ry. Co., 140 Wis. 497, 504, 122 N. W. 1059. An erroneous admission of evidence, irrelevant to the issues finally submitted to the jury, is not prejudicial. Samson v. Ward, 147 Wis. 48, 50, 132 N. W. 629.

[4] If the special verdict in some reasonable form covers all the material issues, other immaterial answers, or answers that do not cover distinct issues, will not be considered reversible errors. Twentieth Cent. Co. v. Quilling, 136 Wis. 481, 485, 117 N. W. 1007. The appellant cannot complain of questions submitted, differing in form, but not in substance, from those requested by him. Redepenning v. Rock, 136 Wis. 372, 379, 117 N. W. 805. Where the special verdict covers all the issues, it is not reversible error to refuse to submit other questions requested. Berndt v. Cudahy, 141 Wis. 457, 459, 124 N. W. 511;Anderson v. Sparks, 142 Wis. 398, 405, 125 N. W. 925. A judgment will not be reversed for an error in submitting one question of the special verdict if the remainder of the verdict supports the judgment. Johnson v. Chicago, etc., Ry. Co., 64 Wis. 425, 25 N. W. 223.

[5] Substance, not form, is considered. John R. Davis L. Co. v. Home Ins. Co., 95 Wis. 542, 70 N. W. 59;Curran v. A. H. Stange Co., 98 Wis. 598, 74 N. W. 377. So instructions which are erroneous as to one of the issues submitted by a question of the special verdict are not ground for reversal if other questions fixing the liability of appellant on another ground were properly submitted. Kortendick v. Waterford, 142 Wis. 413, 417, 125 N. W. 945. So, also, errors in rulings upon certain questions of the special verdict become immaterial or nonprejudicial if there is no error upon the trial of other issues which determine the liability of appellant and are submitted by separate questions of the verdict. So, also, where one question of a special verdict is defective, but the subject intended to be covered thereby is properly covered by other questions in such verdict which were found against the appellant, the submission of the defective question will not warrant reversal. Brown v. Milwaukee, etc., Co., 148 Wis. 98, 133 N. W. 589. These illustrations might be greatly extended by a more critical and comprehensive study of the decisions of this court.

It is contended that in the...