CHRISTOFERO RAZZO, Respondent, v. NICOLA VARNI et al., Appellants

[No. 11558. In Bank. November 25, 1889.] CHRISTOFERO RAZZO, Respondent, v. NICOLA VARNI et al., Appellants. Trespass — Damages — Pleading — Demurrer for Ambiguity. — A complaint merely setting forth, in detail the circumstances attending an unauthorized and aggravated trespass on the close of plaintiff, which have a material bearing on the question of damages, is not demurrable for ambiguity as to what the damages arose from. Id. — Evidence — Estimate of Damages — Grounds of Estimate — Cross-examination. — A witness is not required to state the reasons or grounds on which he estimates the amount of damage to which he testifies before he can testify to such estimate. The party calling the witness may ask for such reasons, or not, as he may choose; they may be made the subject of cross-examination by the opposing counsel, in which great latitude should he allowed; but if opposing counsel fail to avail themselves of such cross-examination, they cannot object to the evidence that no grounds of the estimate were stated. Id.—Proof of Damage — Insult and Ebight Causing Illness of Plaintiff’s Wife. —Evidence is admisible to show that a forcible trespass on the close of plaintiff was accompanied by circumstances of insult and fright to plaintiff’s wife which caused her illness for a long period, and to show that she was in a condition where fright might have caused her illness. Id. — Excessive Damages. — Under the circumstances of this case, a verdict for one thousand dollars damages for a forcible trespass, reduced by a conditional order refusing a new trial to five hundred dollars, held not excessive. Riparian Ownership — Diversion of Spring.—There can be no question of riparian ownership where there is no bed or channel in which water runs. Instructions — Applicability to Evidence.—Instructions not pertinent to the evidence in the case are properly refused. Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The complaint set forth a forcible trespass of the defendants upon the close of the plaintiff, bounded by West Lake, East Eake, and Mount Vernon avenues, and Lake Geneva, in the west end of San Francisco, alleged to have been committed on December 20, 1883. The complaint avers that the “close was then the property of, and in the quiet and peaceable possession of, said plaintiff,” and that defendants “ then and there willfully, unlawfully, and maliciously, and with force and arms, broke and dug up said close, and the soil, earth, and ground of said close, and made a large, long, and deep ditch in said close, and diverted the waters from a certain spring on said close, and converted and appropriated the waters of said spring to their (said defendants’) own use, said spring and the waters thereof being then the property of plaintiff; and broke and destroyed a large quantity of rushes then and there growing on said soil, and the property of plaintiff, and frightened and terrorized Catarina Bazzo, the wife of plaintiff, whereby she became sick and was injured; and then and there disturbed the plaintiff in the use, possession, and occupation of said close, and prevented him from enjoying the same as he otherwise would have done; whereby said plaintiff has been injured and damaged in his said close, and in said soil and rushes and said spring, and the waters thereof, and in the use and enjoyment thereof; and by reason of all which premises aforesaid, said plaintiff is injured and has sustained damages in the sum of five thousand dollars.” The defendants demurred to the complaint upon the grounds that it “ is ambiguous, uncertain, and unintelligible, in this: that it does not appear from the complaint whether the alleged damages to the plaintiff arose from the alleged trespass upon the land by the digging of the ditch, the appropriation of the waters of the spring, injury to the rushes, or personal injury to Catarina Razzo, the wife of plaintiff, or by preventing the plaintiff from the use or enjoyment of said premises”; and “that there is a misjoinder of causes of action, in this: that a cause of action for breaking into and digging up plaintiff’s soil is united with a cause of action for diverting the waters of a spring; also with a cause of action for damages to personal property; also with a cause of action for personal injuries to the wife of plaintiff; also for a cause of action for trespass and disturbing possession of the plaintiff.” The further facts are stated in the opinion of the court. if. G. Hassett, Winans & Belknap, and J. B. Harmon, for Appellants. T. B. Googan, for Respondent. [MAJORITY — Thornton, J.] Thornton, J. 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 is 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 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 (eiting 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 Atchi son 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. McFarland, J., Works, J., Beatty, 0. J., and Sharp-stein, J., concurred. [DISSENT — Fox, J., dissenting.] 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.