Opinion
Decided May 7, 1928.
Damages — Injuries to realty and personalty sufficiently alleged, when — Error in overruling motion to strike out allegations, cured by withdrawal of claim — Opinion evidence — Qualification of witness affects only weight, and not admissibility — Verdict not set aside for admission of opinion evidence, when.
1. Petition in suit for damages to real and personal property, setting out with particularity the injuries to realty and different items of personal property, with claim for damages on account thereof in a lump sum, held sufficient, without alleging value of each particular item of property damaged, since, by claiming damage on account of specific injuries in a lump sum, it thereby became a question of proof, and it was for the jury to assess damages to property as a whole.
2. Any error in overruling motion to strike allegations in petition, in action for damages as to loss of use of building and loss of good will, held cured by subsequent withdrawal of any claim for loss on such account after trial.
3. Qualification of witness, called to give opinion evidence, affects only the weight, and not the admissibility, of the evidence.
4. A reasonable amount of discretion may be exercised by trial court in permitting witnesses to give opinion evidence, and, unless evidence so admitted appears to have been prejudicial, verdict will not be set aside because of court's ruling on its admission.
ERROR: Court of Appeals for Clermont county.
Mr. Alvin H. Hodges and Mr. John M. McCaslin, for plaintiff in error.
Messrs. Nichols, Speidel Nichols, for defendant in error.
Defendant in error, Ross V. Hickey, brought suit against the plaintiff in error, the Cincinnati Street Railway Company, in the court of common pleas of Clermont county, Ohio, seeking to recover for damages to real and personal property of the plaintiff, caused by the street railway company's car leaving its track in the village of Milford, O., and crashing into the funeral home and the residence of Hickey, thereby damaging his real and personal property.
The trial resulted in a verdict and judgment for Hickey in the sum of $2,400. The railway company prosecutes error to this court, seeking a reversal of that judgment.
The answer of the railway company admits liability, but denies the nature, extent, and character of the injuries and damage, as claimed in the plaintiff's petition.
The first point of error made is that the court erred in overruling the motion of the defendant to require the plaintiff to make his petition definite and certain, by setting out the different items of damage separately and giving the amount of the damages claimed for each item, and to require plaintiff to strike certain matter from the petition concerning the loss of use of the funeral parlor, and loss of good will, for a period of time.
Plaintiff in the petition does set out with particularity the injuries to the realty, and with particularity the injuries to the different items of personal property, and makes claim for damages on account thereof in the lump sum of $6,000. The claim is a general claim for damages, based on the allegations of injuries to the real and personal property.
We know of no rule that would require the fixing of value on each particular item of property damaged. He claimed damages on account of the specific injuries in a lump sum, and it thereupon became a question of the proof, and it was for the jury to assess the damage to the property as a whole.
If there was error in the overruling of the motion to strike the allegations in the petition as to loss of use of the building and loss of business, it was cured by the withdrawal of any claim for loss on this account at the trial. There was no prejudicial error in the overruling of the motion to strike.
The other ground of error argued goes to the admitting of opinion evidence on the values of the property damaged. The only question to go to the jury was the amount of the damage. Some of the witnesses, called to give opinion evidence, did not appear well qualified to give such opinion evidence; but this affected the weight, and not the admissibility of the evidence.
It is the rule that a reasonable amount of discretion may be exercised by the trial court in permitting witnesses to give opinion evidence, and, unless evidence so admitted appears to have been prejudicial, a verdict will not be set aside because of the court's ruling on its admission.
Our conclusion is that the evidence fully supports the amount of the verdict and judgment, and that no prejudicial error intervened.
Judgment affirmed.
MILLS and CUSHING, JJ., concur.