Schober v. City of Milwaukee

119 N.W.2d 316, 18 Wis. 2d 591

• Court: Wisconsin Supreme Court
• Decided: February 5, 1963
• Status: Published

Opinions

Dieterich, J.

The record reveals the following facts: The common council of the city, pursuant to ch. 275, Laws of 1931, and amendments thereto, known as the Kline Law, commenced condemnation proceedings for the taking of property owned by Schober, located at 1235-37-39 West Walker street in the city of Milwaukee for public school playground purposes. The award of damages was confirmed by resolution of the common council on April 28, 1961. Title to the property under the act vested in the city on May 25, 1961. On May 16, 1961, Schober served a notice of appeal on the city alleging that the award of damages made by the common council was inadequate and did not constitute full compensation for the condemnation of the Schober premises. On March 9, 1962, a jury was sworn to hear testimony in the trial of the Schober appeal. The real estate involved on the date of condemnation proceedings consisted of two buildings facing Walker street, each building containing four apartments, a seven-room house in the rear, together with a two-car garage. The city issued building, remodeling, and repair permits for the property in question in 1940, 1947, 1948, and 1949. The property was zoned for Residential C (multiple family use) which requires 1,200 square feet per family. The Schober property was 40x150 or 7,000 square feet, which would allow five family units or six apartments with a 200-square-foot variance. Schober became an owner of the property in about 1928. Schober testified that in 1930, the flats were converted into four family units. No building permit was issued at that time. From 1930 until 1961, the Schober property was taxed by the city on the basis that it consisted of nine living units.

Schober’s two expert witnesses testified as to the fair market value of the real estate. Mr. Dooley testified that the real estate was worth $42,000, and Mr. Klapinski testified that the property was worth $43,000.

The city also called two expert witnesses. Mr. Holzhauer arrived at a fair market value of $32,000 as a nine-unit property. He testified that the fair market value of the Schober property as a five or six-unit property would be $26,300. The second witness, Mr. Lederer, arrived at a fair market value of $33,000 as a nine-unit property and $26,000 as a five or six-unit property.

The trial court did not determine whether the Schober property was a valid nonconforming use or whether the city was estopped from claiming that it was an illegal use because the, city collected taxes and issued building permits knowing that the property was being used as a nine-unit property.

The only question submitted to the jury was, “What was the fair market value on May 25, 1961, of the property ... ?” The jury in its verdict determined that $41,000 was the value of the property as of May 25, 1961.

The city contends that certain testimony by Schober and remarks by her counsel were inflammatory and unduly influenced the jury on Schober’s behalf. Certain portions of the testimony which the city claims were prejudicial are as follows:

Counsel for Schober: “Q. Now you tell us how you figure this property is worth $50,000? A. Well, the depression set in, my husband I worked so hard to save this place, we worked steady, ride streetcar, my children almost go hungry during depression, where you going to get money, and we were struggling, we — I sell all children’s insurance policy to keep up the city tax and later on we borrowed money from finance company to pay another city tax because the rent was just — you can’t rent places, my husband work and I work to keep up the place and when we have tenants we can’t get no rent during depression, then depression, when war started — ”

Counsel for city: (Interposing) “If the Court please, I don’t like to do this, very untimely to object to testimony being given in this regard, but I wish that the testimony would be only as to the value. . . .”

Counsel for Schober: “Q. Go ahead. A. And then I lost my — my son in 1945, he was killed in Germany, so then I got sick and my husband got sick, we — all that we figured this is our income. I don’t even let my husband go to work after my son was killed. I say this is our income, we never go hungry as long as we keep up this place so we keep our place up to date with everything and my husband got sick and die 1954 from cancer and I really think was everything causing because we are worry and work too hard and my property today be worth $50,000, be worth even more but if I sell to city, I don’t have to sell, I don’t want to sell, I want my property to my old age today when I wasn’t able to work. We never figure to sell our property. I told that to Mr. Kalvelage and everybody. We buy this place — ”

Counsel for city: (Interposing) “I object to that testimony.”

A majority of the members of the court are of the opinion that a fair reading of the above testimony leaves no doubt that it is inflammatory and highly prejudicial. This testimony, considered together with other statements appearing in the record, such as the artless characterization of Schober’s occupation by counsel as a “scrubwoman,” creates a cumulative effect which can be calculated as sufficient to influence the jury. That although the trial court was diligent in its efforts to exclude prejudice from the proceedings by sustaining objections by counsel for the city and further by instructing the jury at the close of the trial to disregard certain improper testimony, this was not sufficient to negate the total cumulative effect of prejudicial evidence on the minds of the jurors. The writer disagrees with the majority of the court on this point, for the reason that, as evidenced by the transcript, objections were not always made promptly; in fact the objections interposed by the city appear to have been made reluctantly, and further the award made by the jury comes within the range of values put on the property by the expert witnesses.

The instant action is in the form of a trial de novo in the circuit court based upon an appeal from the award of damages made by the city pursuant to a determination by the board of assessments under the Kline Law. The only issue for the jury is damages. However, the jury, in order to arrive at its determination of fair market value, had to decide whether or not the Schober property constituted a valid nonconforming use. Allied with this issue there was also the question of whether the city was estopped from claiming an unlawful use because it permitted the nonconforming use over a period of thirty years, collected taxes on the Schober property on the basis that it contained nine units, and in addition issued building permits for remodeling and repair for the years 1940, 1947, 1948, and 1949.

On a new trial the proper procedure for the trial court to follow under the Kline Law is to decide questions of law and equity and then submit to the jury only the question of damages.

By the Court. — Judgment reversed, and cause remanded for further proceedings consistent with this opinion.