[Download] "Nesbitt v. City of Butte" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Nesbitt v. City of Butte
- Author : Supreme Court of Montana
- Release Date : January 06, 1945
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
1. Municipal Corporations ? Burden of proof of ownership. Where the action was against the city for damages to property by - Page 85 flooding, the plaintiffs had the burden of proof of ownership of the property. 2. Appeal and Error ? Amendments to pleadings during trial. The power to allow amendments at any stage of the trial is within the discretion of the trial court whose action is not subject to review unless there is an abuse of discretion to the prejudice of the adverse party affirmatively shown. 3. Pleading ? Nature of amendments ? No new issue ? Right to answer. The statute in regard to filing and service of an amended complaint does not deprive trial court of discretion to determine whether defendant be allowed time to answer and if the amendment injects no new issue and the defendant is not taken by surprise, failure to allow time for defendant to answer is not error. 4. Pleading ? Type of amendment allowed. The trial court did not abuse its discretion in permitting amendment of complaint at the beginning of the trial so as to allow plaintiff to allege title to an undivided one-fourth interest in the property in an additional plaintiff or in refusing to allow the defendant time to answer the amended complaint where the defendant had denied on information and belief the allegations as to ownership before the amendment and failed to show prejudice by reason of amendment. 5. Evidence ? "Skilled witnesses." A "skilled witness" is one possessing as a result of professional, scientific or technical training or practical experience and a high school graduate who had studied engineering at home and had been employed as an estimator of building construction for 13 years was qualified to testify, as an expert, as to the reasonable value of repairing the building and fixtures damaged. 6. Appeal and Error ? Qualifications of witness within courts discretion ? Weight of such. The determination of the qualification of an expert witness is a matter largely within the discretion of the trial court and in the absence of a showing of abuse, will not ordinarily be disturbed. The degree of an expert witness qualification affects the weight, rather than the admissibility of his testimony. 7. Trial ? Excessive verdict. Where the verdict was for the exact amount specified in the courts instructions as the maximum that could be returned and it was demonstrated that the award included items which should have been withdrawn from the jurys consideration because not supported by competent evidence it was held that the verdict was excessive. 8. Appeal and Error ? Doctrine of remittitur applied. Where the excessiveness of the verdict does not appear to have resulted from passion or prejudice and the excess can be readily determined by mathematical calculation, the Supreme Court may properly modify the judgment by reducing it by the amount of the excess, but the better practice is to remand the cause for a new trial unless the plaintiff agrees to the reduction of the judgment to the extent of excess, and it was so held.