Mengell's Executors v. Mohnsville Water Co.

Opinion by Mr. Justice Mestrezat, The first four assignments allege error in permitting certain witnesses of the plaintiff to testify. The ground of the objection is that they did not sufficiently qualify themselves to testify in the cause. In his opinion, discharging the rule for a new trial, the learned judge of the court below reviewed the testimony affecting their competency and, as he points out, they were clearly admissible under our decisions. The fifth assignment alleges error in that part of the charge of the court in which it is said that the jury may allow interest on the damages ascertained to be due the plaintiff in 1902. If this’part of the charge stood alone, or was all that the court said on the subject, the assignment would have to be sustained. It is now well settled in this jurisdiction that interest, eo nomine, cannot be allowed on damages in condemnation proceedings. It is, therefore, reversible error for the court to charge the jury that interest, as such, may be allowed on the damages which they find to be due the landowner. This we have frequently held. The court, however, should instruct the jury that in ascertaining the amount of their verdict they may consider the lapse of time between the taking of the [127] property and the time of trial as an element of damages, or as compensation for the delay in payment of the sum due the plaintiff for the injuries he has sustained. It is wholly within the province of the jury to determine whether the plaintiff is entitled to any additional sum for the delay, and if so, what amount will compensate him for the delay. They may allow a sum not exceeding six per cent, but they can allow a smaller amount, just as they think the circumstances require in order to make the plaintiff whole. It is, therefore, purely a question for the jury to determine whether any or what sum shall be added to the amount of damages ascertained to be due as of the date of the appropriation of the plaintiff ’a property. The correct rule in such cases, as stated, was recognized by the learned judge in his charge, and we have no doubt that the jury fully understood it and acted upon it in determining the amount of the damages due the plaintiffs. Both parties to the litigation agreed that the measure of damages was the difference in the market value of the property immediately before and after the appropriation by the defendant company. In the first part of his charge the learned judge said: “If, after ascertaining this (the difference in the market value of the property before and after the appropriation), in your judgment the plaintiff will not be made whole by reason of delay or other reasons, you may, as additional damages, allow interest from the time of the appropriation to date. That is a question, however, for the jury. ” In the concluding part of the charge proper, the court said: “Take the property as it stood before the company appropriated the water and ascertain its fair market value. Take it as it stood after the company appropriated the water, ascertain its market value then, and the difference is the measure of damages, with interest, as I have already indicated, if you see proper to give that.” It is clear, therefore, that the learned judge correctly charged the jury as to allowing additional damages for the delay in compensating the plaintiff for the injuries he had sustained by the appropriation of his property. The parts of the charge quoted left no doubt in the minds of the jurors as to their duty in passing upon that question. The alleged error [128] occurred when the court answered the defendant’s point for instruction. The appropriation of the plaintiffs’ property was made in 1902, but there was evidence as to' the value of the property in 1875, and the defendant by its point requested the court to instruct the jury that the price paid for property in 1875 was not evidence of the market value of the plaintiffs’ property in 1902. The court affirmed the point, and in giving his reasons therefor committed the alleged error complained of. What was said, however, was merely to impress upon the jury their duty to eliminate from their consideration the prices of property in that neighborhood in 1875. What the learned judge said in reference to the allowance of interest was in view of the fact that, as he told the jury, the damages must be assessed as of the year 1902; and it must be considered in connection with the parts of the charge in which the court distinctly told the jury, both at the beginning and conclusion of its remarks, that they might allow interest as additional damages for the detention of the amount due the plaintiff. The language of the court in its supplemental instructions in answer to the defendant’s point clearly shows, and the jury would understand, that it was solely within their discretion to allow interest as compensation for the time intervening between 1902 and the date of the trial. The remark of the court complained of was manifestly not regarded as objectionable to the defendant at the time because the court’s attention was not called to it, nor subsequently on the application for a new trial as it was not presented nor urged as a reason for a retrial of the cause. We think it did not mislead the jury or give them a rule for considering the question of interest different from the correct rule laid down in the two parts of the charge quoted above. It may be well to suggest that in cases of this character the court should be careful in stating the rule upon this subject. As pointed out in our cases, there are many instances in which the plaintiff has caused the delay in the payment of his damages and where, therefore, he is not entitled to any additional sum on the amount due him as of the date of the appropriation. In actions ex contractu, the plaintiff is entitled as of right to in [129] terest on any fixed sum that may be found due him; and the jury, unless clearly and positively instructed, may. infer in actions of tort, that he is also entitled to interest on. the damT ages awarded him. If he has not caused the delay in the ascertainment and payment of the damages, the delay is an element .which should be considered by the jury in ascertaining the amount of their verdict; but where his action has unreasonably prevented a settlement for the amount due him and the defendant company has not been at fault, he should not be compensated for his own wrong. In all such cases, therefore, the jury should receive explicit instructions by the court as to their duty in disposing of the question. By inadvertence, “an estate” was made the plaintiff in this case instead of the executors of the testator to whom the damages are payable and with whom the petition avers the defendant made an attempt to settle for the compensation due for the damages sustained. This error runs throughout the proceedings and manifestly escaped the attention of the court below. We correct the error here. The assignments of error are overruled, and the judgment is affirmed.