Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
M. C. Hassett, Winans & Belknap, and J. B. Harmon, for Appellants.
T. B. Coogan, for Respondent.
JUDGES: In Bank. Thornton, J. McFarland, J., Works, J., Beatty, C. J., and Sharpstein, J., concurred. Fox, J., dissenting.
I have examined the record in this case carefully, and find no error in it.
There is no ambiguity in the complaint. It merely sets forth in detail the circumstances attending an unauthorized and aggravated trespass on the close of plaintiff which have a material bearing on the issue of damages.
The court ruled correctly on the questions put to plaintiff as to his estimate of the amount of damage. It is to me a novel and unprecedented rule that a witness, before he can testify as to the amount of damage, must state the reasons, or grounds, or basis on which he estimates that amount. The lack of or defect in any reason or ground of basis of estimate can be made to appear by cross-examination. A competent witness (there is here no objection to witness's competency) may give his estimate, which can be admitted by the trial court. The party calling forth the testimony may, if he chooses, ask for the reasons or grounds on which the witness bases his estimate, but he is not bound to do so. The testimony is admissible, whether the party calling out the testimony inquires as to the grounds of estimate, or does not so inquire. The opposing counsel, on cross-examination, may make such inquiry, and may thus show that there is no ground or basis on which such estimate can be made or upheld, and that, therefore, such estimate is fallacious, and not to be relied on. Should he fail to do this, it his own fault, and he cannot be heard to complain in this court. Here the defendants' counsel had abundant opportunity to cross-examine the witness as to the basis on which he made his estimate, and failed to do so. The aim and end of all cross-examination is to sift, explain, or modify what has been said on the examination in chief, and to discredit the witness. The evidence here might have been sifted by the cross-examiner calling out, when it became his turn to take the witness, the reasons, or ground, or basis on which he made his computation, or estimate, as to damage, and he might have shown that the estimate was based on grounds illusory and unsubstantial. A court cannot say, as a matter of law, that a witness who gives his opinion as to value, or testifies to an estimate of damage, has no criterion in his mind on which he founds his opinion or estimate. It would be inconsequential and unreasonable to assume such a vacant state of mind to exist, and would be contrary to all psychological rules. If the mind of the witness is so vacant, it can be made to appear by cross-examination. A court has no more right to assume that a witness testifies on such matters without grounds for it than it has to assume that a witness whose testimony bears the usual marks or indicia of truth is testifying falsely. The grounds or basis of a witness's opinion or estimate can always be sifted or examined into and tested by cross-examination, and this is the mode the law has prescribed to accomplish such end. This is the common, every-day mode, constantly resorted to in practice on trials in courts, and it is an eminently satisfactory and adequate mode. The court committed no error in its ruling [22 P. 849] on these questions. The counsel had full opportunity to sift the witness and his testimony on cross-examination, of which he failed to avail himself. (See 1 Thompson on Trials, c. 17, on cross-examination, secs. 405, 406, 408-413.) In section 413, just cited, the author correctly states: "Where a witness has, on his examination in chief, given his opinion as to value, he may be cross-examined in full respecting his reasons for such opinion; and here the rule applies that great latitude should be allowed in cross-examination (citing Missouri etc. R. R. Co. v. Haines, 10 Kan. 439; Central Branch R. R. Co. v. Anderson, 30 Kan. 590; Atchison etc. R. R. Co. v. Blackshire, 10 Kan. 477, 486; Markel v. Moody, 13 Neb. 323, 327), the limits of which, when no rule of law is violated, are within the discretion of the presiding judge (citing Miller v. Smith , 112 Mass. 470). A question is proper which enables the jury to see upon what basis the witness has made his estimate of value, or which connects his general estimate of value with the thing in respect of which the injury is predicated" (citing Atchison etc. R. R. Co. v. Blackshire, 10 Kan. 477; see also Thompson v. Morley , 46 Mich. 470).
Nor did the court err in its ruling in admitting evidence to show that the plaintiff had a wife and a child, and that the child was only six or seven months old, which his wife was then nursing. The trespass complained of was an aggravated one, and was committed with force, thirteen men entering the close to dig a ditch inside of plaintiff's inclosure. One man came with a hoe, another with a shovel, and another with a gun. The gun was left outside of the inclosure. This display of force was calculated and was no doubt intended to intimidate, and therefore it may be said that the entry complained of was made with force. Plaintiff's wife attempted to stop them from digging the ditch. She alone, as far as the testimony shows, appeared on the ground and attempted to get the invaders to desist from digging the ditch. She was treated with derision, and there was testimony to show that she was roughly pushed about. She testified that she became sick from the fright and excitement caused by the treatment she there received, which sickness continued for three months. The evidence was admissible to show that she was in a condition where fright might have affected her, as she testified it did. It was also admissible to show that the forcible entry was accompanied by circumstances of insult which had a material bearing on the question of damage.
It is said the verdict was excessive. I do not think so. The amount found by the verdict was one thousand dollars, and the court required plaintiff, as a condition of refusing a new trial, that he should remit five hundred dollars. This was done, and the new trial was denied. The defendants have no ground to complain of this amount. In my judgment the court might well have allowed the amount found by the jury to remain unchanged.
I find no error in refusing the request for instructions to the jury, to which the court's attention is called by defendants. The instructions requested had no pertinence to the case, but were entirely outside of it. There was no riparian ownership. The testimony showed no watercourse. There was no bed or channel in which the water ran, and consequently there could be no ripa bank, and hence there could be no riparian or bank owner .
The evidence, in our view, is sufficient to justify the verdict.
We find no error in the record, and the judgment and order must be affirmed.
Fox, J., dissenting. I dissent. In my judgment the evidence, even if competent (which I do not concede), fails to show damage to an amount equal to one tenth the sum recovered. Whatever damages were attempted to be proved were such as grew out of loss of profits in the business, and the testimony as a whole shows by a great preponderance that this loss resulted from causes other than such as can be traced to the acts of defendants, and was common to all persons engaged in the business at that time.
Besides, I am at a loss to see upon what principle the court can allow a recovery for damages accruing after the commencement of the suit, under a complaint not framed for the purpose; and every dollar of the damage proved, or attempted to be proved, in this case accrued long after the suit was brought, while the complaint was never, either originally or by amendment, framed for the recovery of such damages.