Uhe v. Chi., M. & St. P. Ry. Co.

• Decision Date: 24 February 1893
• Citation: 3 S.D. 563,54 N.W. 601
• Court: South Dakota Supreme Court
• Parties: UHE v. CHICAGO, M. & ST. P. RY. CO.

3 S.D. 563

54 N.W. 601

UHE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota.

Feb. 24, 1893.

Syllabus by the Court.

1. The case of Bailey v. Railway Co., 54 N. W. Rep. 596, (decided at the present term,) relating to the proper measure of damages when trees are negligently destroyed by fire or otherwise, is approved.

2. When a witness in his testimony voluntarily refers to a conversation he had with another party,-which conversation was not shown to be relevant to the case on trial,-for the purpose of fixing the time he first had knowledge of the facts to which he was testifying, the opposite party is not entitled to have the full details of that conversation, if objection is made.

3. It is error to enter judgment in a case when, after verdict, a stay of all proceedings has been ordered by the court, if the entry of the judgment was within the time in which the order is operative.

4. In an action for the breach of an obligation not arising from contract it is a substantial error for the court to direct the jury to assess interest upon the amount of damages. The question of interest should be left to the discretion of the jury. See section 4578, Comp. Laws.

Appeal from circuit court, Turner county.

Action by August Uhe against the Chicago, Milwaukee & St. Paul Railway Company to recover for damages caused by defendant's burning the property of plaintiff. There was judgment for plaintiff, and defendant appeals. Reversed.Winsor & Kittredge, for appellant. Palmer & Rogde, for respondent.

BENNETT, P. J.

The complaint in this case alleges that the defendant negligently destroyed by fire the property of the plaintiff. The answer is a general denial. A trial before a jury resulted in a verdict sustaining the allegations of the complaint, and judgment was rendered for the amount of the property alleged to be destroyed. From this judgment the defendant appeals.

The assignment of errors raises three questions for determination: First. What is the proper measure of damages where growing trees are negligently destroyed by fire, and how shall it be determined? Second. Was it error in refusing to allow the witness Stone to give all of a conversation, a part of which it is alleged had been brought out on examination? Third. Did the court err in denying defendant's motion to open the judgment for the purpose of allowing defendant to incorporate, prior to the judgment, an exception to that part of the charge of the court given to the jury which relates to interest upon the amount they found due the plaintiff.

So far as the first question is concerned, it has been settled in the case of Bailey v. Railway Co., 54 N. W. Rep. 596, (decided at the present term,) where the same question in relation to the measure of damages was raised. The reasoning and conclusion in that case, upon this point, is conclusive, and we must hold this assignment not well taken.

As to the second question,-whether there was error of the court in not permitting the witness Stone to detail all of a conversation, a part of which it was alleged had been brought out by the plaintiff on examination. It appears from the abstract that a witness for the defense, by the name of Stone, on cross-examination stated that “the first time the company knew of my knowledge of this case was after the verdict had been brought in in the Haugen Case. Mr. Kennedy and I was talking of the case, and he mentioned some of the testimony.” On redirect examination the witness was asked to state the balance of the conversation he had with Mr. Kennedy on the afternoon of the Haugen trial. The plaintiff objected to the witness answering, for the reason that the plaintiff did not call for the conversation said to have occurred between Mr. Kennedy and the witness, and the plaintiff could not be held responsible for a voluntary remark, not responsive to a question, made by witness. The objection was sustained by the court. By an examination of the question, and answer of the witness, it will be seen the witness did not give or attempt to give any of the conversation had between Mr. Kennedy and himself on the cross-examination. Therefore the rule of evidence that, when a person calls out a portion of a conversation, the opposite party is entitled to have the benefit of the full conversation, does not apply. The object of the cross-examination was not to bring out any conversation the witness had with Mr. K., but to ascertain the first period of time when the defendant had knowledge of the fact that the witness knew anything of the case, which he located by a conversation he had with Mr. K. after the verdict in the Haugen Case was returned. What was said between them at that time in relation to that case was entirely irrelevant and immaterial, and the conversation was only referred to by the witness to establish the fact that he knew anything material for the defense. The court did not err in sustaining the objection of plaintiff.

The next point for consideration involves the construction of section 5049, Code Civil Proc., which reads as follows: “All instructions given by the judge shall be read to the jury in the following order: First, defendant's instructions by defendant's counsel; second, plaintiff's instructions by plaintiff's counsel; third, instructions given by the judge of his own motion, if any, by the judge giving the same; and all instructions so read shall be taken by the jury in their retirement, and returned into court...