Summary
stating that in a condemnation case, "[f]air market value is defined as that amount which can be realized on sale by an owner willing, but not compelled, to sell to a purchaser willing and able, but not obliged, to buy"
Summary of this case from Milwaukee Post No. 2874 v. Redev. AuthOpinion
April 27, 1964 —
June 2, 1964.
APPEALS from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Reversed.
For the appellant there were briefs by Martin J. Torphy and E. Campion Kersten, both of Milwaukee, and oral argument by Mr. Kersten.
For the respondent there was a brief by Robert P. Russell, corporation counsel, and George E. Rice, first assistant corporation counsel, and oral argument by Mr. Rice.
Condemnation. Plaintiff-appellant is the assignee of the cause of action for just compensation, tracing his title through an intermediate assignee to the trustee in bankruptcy of the condemnee.
The property involved is real estate and a building erected thereon which served the function of a food-processing plant, warehouse, and office building. Defendant-respondent took the property by condemnation on May 16, 1961. On May 22, 1961, the owner, P. C. Monday Tea Company, filed a voluntary petition in federal district court for reorganization under ch. XI of the Bankruptcy Act. On May 25th the P. C. Monday Tea Company filed notice of appeal from the condemnation award in circuit court for Milwaukee county. On the same date a receiver was appointed for P. C. Monday Tea Company. On May 29, 1961, the condemnor was served with notice of appeal. On May 31, 1961, the Marine National Exchange Bank, which had a mortgage on the property, was served with notice of appeal.
On July 18, 1961, after the first meeting of creditors, P. C. Monday Tea Company was adjudicated bankrupt under sec. 376 (2) of the Bankruptcy Act (11 U.S. Code, sec. 776 (2)). On July 21, 1961, a trustee in bankruptcy was appointed. Subsequently various judgment lienholders were interpleaded by the condemnor and the United States of America received permission to intervene in the action because of alleged tax liens. On July 18, 1962, the trustee in bankruptcy assigned the chose in action to the Marine National Exchange Bank of Milwaukee, "subject to all liens and claims, if any, including the alleged claim for attorney's lien by Peter P. Woboril, Jr." On August 16, 1962, the Marine National Exchange Bank assigned all of its right, title, and interest in the cause of action to Robert W. Monday, subject to a mortgage which the bank held against the condemned property. On November 26, 1962, Robert W. Monday intervened in the action.
After a pretrial conference the trial court ordered that the jury issues be limited to fair market value and compensable damages under sec. 32.19, Stats. The question of distribution was reserved to be heard and determined subsequently.
The case was submitted to a jury on a special verdict. With two dissents, the jury determined the fair market value of the property at $149,500 and the cost of removal of personal property at $2,000. At the close of plaintiff's case defendant moved for nonsuit on the ground that the plaintiff was not the real party in interest. This motion was denied. After verdict defendant moved for judgment notwithstanding withstanding the verdict on the ground that plaintiff was not the real party in interest and moved for a new trial on 22 grounds.
Defendant's motion for a new trial was granted on the ground that defendant had a right to identify the other interested parties. In addition, the trial court held the closing argument of plaintiff's counsel improper and prejudicial, but decided that the defendant had waived its objection to the argument because it had not objected at the time nor had it moved for mistrial at the close of the argument. The other 20 grounds were held to be without merit. Defendant's motion for judgment notwithstanding the verdict was denied.
Plaintiff appeals from the order granting defendant a new trial. Defendant appeals from the order insofar as it denies the motion for judgment notwithstanding the verdict. Defendant also seeks cross review of the alleged improper argument by plaintiff's counsel.
Issues.
1. Is an appeal from a condemnation award an assignable cause of action?
2. Assuming that Robert W. Monday is not the real party in interest, was it prejudicial error for the trial court to reduce the caption of the case so that only his name appeared thereon and to deny defendant the opportunity to identify the other interested parties?
3. Was the closing argument of counsel for the plaintiff improper and prejudicial?
Assignability of Cause of Action.
If a cause of action survives it is assignable. Lehmann v. Farwell (1897), 95 Wis. 185, 70 N.W. 170. Sec. 331.01, Stats., provides that in addition to actions surviving at common law, actions for damage done to the property rights or interests of another, and for damages done to real or personal property, as well as other actions, also survive.
It is often said that at common law contract actions survive while tort actions die with the person. Wogahn v. Stevens (1940), 236 Wis. 122, 294 N.W. 503. However, the basic principle of survivability at common law was that wrongs which diminished property formed the basis of survivable actions while personal injuries did not. 1 Am.Jur.2d, Abatement, Survival, and Revival, p. 86, sec. 51, of course, if the principal wrong was a personal injury, the action would not survive even though property rights were incidentally affected. Howard v. Lunaburg (1927), 192 Wis. 507, 213 N.W. 301.
In Frey v. Duluth, S. S. — A. R. Co. (1895), 91 Wis. 309, 64 N.W. 1038, it was held that a right of action for compensation for partial taking of lands was assignable. In Kuhl v. Chicago — N.W. R. Co. (1898), 101 Wis. 42, 77 N.W. 155, the Frey Case was explained as holding that the obligation when a statutory remedy for just compensation is pursued is one in implied contract.
Defendant misses the mark when it argues that the appeal of the basic condemnation award is not assignable. The cause of action is assignable; the appeal is merely a procedure by which it is enforced.
Plaintiff as the Real Party in Interest.
Defendant argues that the assignments in plaintiff's chain , of title to the cause of action are conditional and not absolute. On this ground he asks for judgment notwithstanding the verdict because the action was not prosecuted in the name of the real party in interest as required by sec. 260.13, Stats.
It is unnecessary to decide whether Mr. Monday has an interest sufficient to satisfy the demand of the statute because all the other parties were and still are in the case. The case was prosecuted in Robert W. Monday's name alone only as far as the jury was concerned because of the reduction of the caption. Error, if any, in this regard was nonprejudicial because the sole question for determination on this trial was fair market value.
Defendant also argues that the appeal from the basic award was not perfected by the proper party because at the time the last notices of appeal to circuit court were served a receiver had been appointed for the P. C. Monday Tea Company.
This argument was made for the first time on appeal. Defendant interpleaded numerous parties to this action. It went to trial on the merits. It is foreclosed now from complaining about procedural irregularities.
The Right to Identify the Interests of Other Parties in the Condemned Property.
The trial judge was of the opinion that counsel for the condemnor was entitled to point out to the jury the interest in the condemned property of the other parties to the action. He concluded that the denial of this right was prejudicial error and granted a new trial in the interests of justice. We do not agree. Identifying the interests of the other parties where the sole question for determination was fair market value would have served no purpose other than to alert the jury to the financial difficulties of the P. C. Monday Tea Company. Fair market value is defined as that amount which can be realized on sale by an owner willing, but not compelled, to sell to a purchaser willing and able, but not obliged, to buy. Wis J I — Civil, Part II, 8100; Allen v. Chicago — N.W. R. Co. (1911), 145 Wis. 263, 129 N.W. 1094. Whether to allow this type of backdoor comment on the financial condition of the record owner of the property at date of taking would be prejudicial error, we do not decide. The question is not before us.
Counsel for the condemnor concedes that he was not foreclosed from questioning the jurors regarding their connection with any party on voir dire examination. He did not take advantage of this opportunity. The interests of justice do not require that he be given another chance.
The Alleged Improper Argument.
Defendant complains because counsel for plaintiff in his closing argument characterizes one of defendant's witnesses as "Mr. Condemnor" and "Mr. Take." This witness was the defendant's right-of-way engineer. He testified that he was in charge of all land acquisitions for the defendant. He testified on cross-examination that it was his duty to conduct a complete review of all appraisals; that he made an appraisal in the case; that he reviewed his own appraisal; and that he "came out 100 per cent."
Under the circumstances, we consider the characterization of the witness to be fair comment. In weighing the witness' testimony the jury was entitled to take into consideration any interest he might have in the case, professional or pecuniary. Counsel did not transgress the bounds of propriety in informing them of their right.
By the Court. — Order reversed, and cause remanded with directions to reinstate the jury verdict and for further proceedings according to law.