Razzo v. Varni
Before: Fox, Thornton
Synopsis
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.
Opinion — Thornton
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 [292]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 crite[293]
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