Schober v. City of Milwaukee
| Decision Date | 05 February 1963 |
| Citation | 18 Wis.2d 591,119 N.W.2d 316 |
| Parties | In re Appeal from the Confirmation of Award of Damages, etc.: Josephine Ladich SCHOBER, Respondent, v. CITY OF MILWAUKEE, a municipal corporation, Appellant. |
| Court | Wisconsin Supreme Court |
John J. Fleming, City Atty., Ewald L. Moerke, Jr., and Harvey G. Odenbrett, Asst. City Attys., Milwaukee, for appellant.
Stupar & Enich, Steve Enich and Reginald Hislop, Jr., Milwaukee, for respondent.
The record reveals the following facts: The common council of the City, pursuant to ch. 275, Laws of 1931 and amendments thereto, known as the Kline law, commenced condemnation proceedings for the taking of property owned by Schober, located at 1235-37-39 West Walker street in the city of Milwaukee for public school playground purposes. The award of damages was confirmed by resolution of the common council on April 28, 1961. Title to the property under the act vested in the City on May 25, 1961. On May 16, 1961, Schober served a notice of appeal on the City alleging that the award of damages made by the common council was inadequate and did not constitute full compensation for the condemnation of the Schober premises. On March 9, 1962, a jury was sworn to hear testimony in the trial of the Schober appeal. The real estate involved on the date of condemnation proceedings consisted of two buildings facing Walker street, each building containing four apartments, a seven room house in the rear, together with a two car garage. The City issued building, remodeling and repair permits for the property in question in 1940, 1947, 1948 and 1949. The property was zoned for Residential C (multiple family use) which requires 1,200 square feet per family. The Schober property was 40 X 150 or 7,000 square feet, which would allow five family units or six apartments with a 200 square foot variance. Schober became an owner of the property in about 1928. Schober testified that in 1930, the flats were converted into four family units. No building permit was issued at that time. From 1930 until 1961, the Schober property was taxed by the City on the basis that it consisted of nine living units.
Schober's two expert witnesses testified as to the fair market value of the real estate. Mr. Dooley testified that the real estate was worth $42,000, and Mr. Klapinski testified that the property was worth $43,000.
The City also called two expert witnesses. Mr. Holzhauer arrived at a fair market value of $32,000 as a nine unit property. He testified that the fair market value of the Schober property as a five or six unit property would be $26,300. The second witness, Mr. Lederer, arrived at a fair market value of $33,000 as a nine unit property and $26,000 as a five or six unit property.
The trial court did not determine whether the Schober property was a valid non-conforming use or whether the City was estopped from claiming that it was an illegal use because the City collected taxes and issued building permits knowing that the property was being used as a nine unit property.
The only question submitted to the jury was 'What was the fair market value on May 25, 1961, of the property * * *? The jury in its verdict determined that $41,000 was the value of the property as of May 25, 1961.
The City contends that certain testimony by Schober and remarks by her counsel were inflammatory and unduly influenced the jury on Schober's behalf. Certain portions of the testimony which the City claims were prejudicial are as follows:
Counsel for Schober:
Counsel for City: (Interposing) 'If the court please, I don't like to do this, very untimely to object to testimony being given in this regard, but I wish that the testimony would be only as to the value. * * *'
Counsel for Schober:
Counsel for City: (Interposing) 'I object to that testimony.'
A majority of the members of the court are of the opinion that a fair reading of the above testimony leaves no doubt that it is inflammatory and highly prejudicial. This testimony considered together with other statements appearing in the record, such as the artless characterization of Schober's occupation by counsel as a 'scrubwoman' create a cumulative effect which can be calculated as sufficient to influence the jury. That although the trial court was diligent in its efforts to exclude prejudice from the proceedings by sustaining objections by counsel for the City and further by instructing the jury at the close of the trial to disregard certain improper testimony, this was not sufficient to negate the total cumulative effect of prejudicial evidence on the minds of the jurors. The writer disagrees with the majority of the court on this point, for the reason that, as evidenced by the transcript, objections were not always made promptly; in fact the objections interposed by the City appear to have been made reluctantly, and further the award made by the jury comes within the range of values put on the property by the expert witnesses.
The instant action is in the form of a trial de novo in the circuit court based upon an appeal from the award of damages made by the City pursuant to a determination by the Board of Assessments under the Kline law. The only issue for the jury is damages. However, the jury, in order to arrive at its determination of fair market value, had to decide whether or not the Schober property constituted a valid non-conforming use. Allied with this issue there was also the question of whether the City was estopped from claiming an unlawful use because it permitted the non-conforming use over a period of thirty years, collected taxes on the Schober property on the basis that it contained nine units, and in addition issued building permits for remodeling and repair for the years 1940, 1947, 1948 and 1949.
On a new trial the proper procedure for the trial court to follow under the Kline law is to decide questions of law and equity and then submit to the jury only the question of damages.
Judgment reversed and cause remanded for further proceedings consistent with this...
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