Weeden v. City of Beloit

• Decision Date: 01 February 1966
• Citation: 139 N.W.2d 616,29 Wis.2d 662
• Parties: Lyle A. WEEDEN et al., Appellants, v. CITY OF BELOIT, Respondent.
• Court: Wisconsin Supreme Court

Page 616

139 N.W.2d 616

29 Wis.2d 662

Lyle A. WEEDEN et al., Appellants, v. CITY OF BELOIT, Respondent.

Supreme Court of Wisconsin.

Feb. 1, 1966.

This is an appeal from a judgment, pursuant to a verdict, awarding the plaintiffs the sum of $34,000 for the taking of a lot and building by the city of Beloit. In April, 1962, the city of Beloit served upon the owners a jurisdictional offer in the amount of $22,378.33. This was refused and, pursuant to statute (sec. 32.06(7), Stats.), the city petitioned the circuit court for a proceeding before condemnation commissioners for a determination of just compensation. The commissioners made an award of $29,000 plus $2,000 for moving expenses. The owners caused the funds to be deposited with the circuit court and, pursuant to sec. 32.06(10), Stats., appealed to the circuit court, where a trial on the question of fair market value was had before a jury. A verdict was returned in the amount of $34,000.

The landowners appeal, claiming that the verdict of the jury is against the great weight and clear preponderance of the evidence.

Clyde E. Sheets, Milwaukee, for appellants.

Garrigan, Keithley, O'Neal, Dobson & Elliott, Beloit, for respondent. HEFFERNAN, Justice.

Is there credible evidence to sustain the jury's verdict?

In reviewing a jury verdict this court need only consider that evidence which supports the verdict. ¹ It is also clearly a rule of this court that a verdict should not be disturbed 'if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding.' ² This approach is especially applicable when, as in the instant case, the trial court approved of the verdict. ³ That this approach is equally applicable in condemnation cases is evident from the following statement made by this court in affirming a jury verdict on a condemnation award:

'We must be mindful that the court below passed upon the matter under circumstances more favorable for arriving at a just result than are afforded here. To disturb the result would require overriding the conclusion of the jury, reinforced by that of the trial judge.' ⁴

The instant case also presented the jury and the trial court with considerable conflicting expert testimony. It was the duty of the trier of the fact to determine the credibility of the witnesses and resolve the conflicting testimony. ⁵ This rule is equally applicable in condemnation cases. ⁶

The evidence presented clearly sustains the jury's verdict finding that the fair market value was $34,000.

One of the appellants' witnesses testified that the property had a value of $75,600, and the other testified to a value of $70,000. Three witnesses appeared for the city and, as is not unusual in these cases, they appraised the land at appreciably less. Their figures were $22,355.95, $22,379.00, and $22,378.33. In addition, evidence of comparable sales was admitted by the trial judge.

In Hurkman v. State, ⁷ this court stated:

'We take notice from the records of innumerable land condemnation cases that opinions of ostensibly equally qualified experts as to values often vary to a substantial and irreconcilable degree. Considering the opinions of the experts alone, in these cases, can leave the jury with little rational basis for its ultimate findings. In these instances proper evidence of comparable sales can be of substantial aid to the jury in the performance of its obligation to find the true value.' ⁸

These sale prices varied from $9,000 to $45,000. Appellants contend that the comparable sales offered by the city were not similar enough to provide a basis of valuing the property in question. The rule, however, in this state is that it is in the sound discretion of the trial court to determine whether the sales offered are sufficiently comparable to be of assistance to the jury in ascertaining fair market value. The trial judge's determination in this respect will not be reversed in the absence of clear error. ⁹ Moreover, the extent to which the offered sales are truly comparable goes to the weight of the expert's testimony and not to admissibility.

In addition, the jury was properly instructed that in giving weight and effect to other sales it was to consider 'all of the elements of similarity in situation and time, and also all of the elements of dissimilarity and to determine how far such sales go to establish what was the fair market value on the day of taking.'

This court said in Bear v. Kenosha County:

'The expert witness testifying as to value of property which he has examined should base his opinion on comparable sales as an element of value if such sales exist. The sales used as a foundation or partial foundation of an expert's opinion of value are admissible and if not comparable, go to the weight of the expert's opinion, not their admissibility. The rule of comparable sales is applicable to direct evidence of sales for consideration of the jury in determining the value. The materiality of the elements of the foundation for an expert's opinion goes to its weight.' ¹⁰

It is clear that the value arrived at was well within the range of values placed in evidence. While it may well be possible for reasonable persons to arrive at different values within the limits placed in evidence, there is credible evidence to sustain the jury's verdict.

Was it improper for three of the city's witnesses to testify

to a value based on a joint or collaborated appraisal?

The appellants contend that the values testified to by the city's witnesses do not support the verdict inasmuch as it was admitted that the figure testified to was arrived at after a series of conferences between the three witnesses and was an average of separate valuations. The appellants claim that this is a quotient appraisal and is invalid. The question of quotient appraisals has not been considered by this court before. In a few reported cases on this subject in other jurisdictions, the courts have determined the question of whether the appraisal was an improper quotient appraisal by applying the same rule as that applied in determining whether a jury's verdict was an improper quotient verdict. The crucial issue, therefore, is whether the appraisers agree in advance to accept as a final appraisal figure a sum arrived at by dividing the aggregate of the amounts of their individual estimates by the number of appraisers, regardless of their individual judgment. If this is done, the appraisal is considered invalid. ¹¹ We are in agreement with this approach as applied to quotient jury verdicts. ¹²

Even though we were to apply the rationale of the quotient verdict cases to appraisals, we would not find the procedure utilized here objectionable.

While it was admitted that the appraisers averaged separate valuations and by dividing arrived at a figure, the record is devoid of any evidence to show that they agreed in advance to bind themselves to that quotient. Rather, it appears that they met as many as five times, discussed various approaches to valuation, and after reaching a quotient agreed that the amount thus derived represented the individual valuation of each of them. There is no testimony that any of the witnesses arrived at a final individual appraisal in advance of these discussions. The record shows that each of them separately visited the premises, and they together estimated the value of the property by computing the value on the basis of various accepted methods of valuation (comparable sale, income, and cost of reproduction). These various values were added together, and that sum was divided by the number of valuation methods utilized. Nowhere does the record show that the witnesses agreed in advance to be bound by the figure that resulted. It is clear, moreover, that the figure was the quotient of the values arrived at by the several methods, and not the quotient of each appraiser's considered valuation. It is only by coincidence that the number of methods used was the same as the number of appraisers. It is therefore apparent that the result reached here would not be invalid even in those states that frown on quotient appraisals. ¹³

Moreover, we do not consider the 'appraisal' here analogous to the situation where the award of appraisers in and of itself has some legal effect, as, for example an appraisal pursuant to a policy of insurance under sec. 203.04, Stats. The Appellants and the record refer to the parties who testified in regard to value on behalf of the city as 'appraisers.' In fact, in a judicial inquiry into value, they are nothing more than expert witnesses; and, as a consequence, the weight of their testimony and of their opinions is subject to the tests usually employed in courts, and though these experts agreed in advance to set individual values and then arrived at a quotient as the group's opinion, we would not hold that that figure did not have evidentiary value. The opinion of an expert witness as to value has little probative worth unless it is soundly arrived at. In the event a quotient figure were used, it would be incumbent in a condemnation award for the witness to detail, as he does now, his computations, the various individual values that were used, and the methods employed to arrive at each of them. As the trial judge required in this case, the method used by the experts would have to be clearly set forth, the individuals could be obliged to testify, and they would be subject to cross examination. The validity of their individual opinions could easily be examined. In this respect, a quotient opinion as to value is very different from a quotient verdict. If his opinion is to have any weight, it is the duty of the witness to testify concerning the method of his analysis, while the jurors in this state have no right to testify concerning the method of reaching a verdict. ¹⁴ It is our opinion that expert witnesses as to value should not be limited by the same rule that outlaws...