
    Emery v. City of Toledo.
    (Decided October 21, 1929.)
    
      Mr. Charles A. Thatcher, for plaintiff in error.
    
      Mr. Dudley Smith, Mr. Martin S. Dodd, and Mr. Marh Winchester, for defendant in error.
   Williams, J.

This proceeding in error is brought to reverse a judgment of the court of common pleas rendered in a proceeding to condemn property for the purpose of eliminating the grade crossing at the point where the New York Central and Michigan Central Railroads cross Central avenue in the city of Toledo. The condemnation proceeding was originally begun in the probate court, and, upon trial in that court, a verdict was returned fixing the sum of $39,000 as compensation for the appropriation of the property of Sarah C. Emery, plaintiff in error. Judgment was entered thereon, and an appeal was taken therefrom to the court of common pleas. Upon trial in that court, there was a verdict and judgment of $40,000.

During the trial before the court of common pleas one J. P. Wakefield was called as a witness on behalf of the property owner. Without testifying as to the value of the property, the witness was excused from the witness stand. - Later he was recalled to the witness stand and examined by counsel for the city. We quote the following from the testimony of the witness Wakefield:

“Q. And what would you say the entire property, land and the building as it stands, is worth? A. I have been asked that a good many times. I said $40,000.
“Mr. Thatcher: Preserve the question.
“The Court: What did you say? A. The whole building I figure $40,000 would be what it would be worth.
“The Court: The building? A. The building and the ground.
“The Court: The whole property. * # *
“Mr. Thatcher: Mr. Wakefield, are you a real estate man? A. No, sir.
“Q. Your only experience then in Central Avenue is the two pieces that you own; is that right? A. I have owned other property out there.
“Q. You are not in the real estate business? A. No.
“By the Court: Let the record show that the Court has some determination as to whether or not an expert witness is qualified, and the Court knows Mr. Wakefield and has known him for thirty years, and knows that he knows the value of that property around there.”
“Mr. Thatcher: Note an exception to the remarks of the court.”

The bill of exceptions shows that the witness was further questioned, and that at the close of his testimony the trial judge, in the presence of the jury, made the following statement:

“The Court: Are you cross-examining your own witness? If there was an objection the Court would sustain it, but we are now going to take a recess. But first, let the record show that when the Court stated that he knew that Mr. Wakefield knew the value of this property he was in error — the jury will disregard that statement of the Court. The Court does not know — the Court withdraws that statement. He does not know that Mr. Wakefield knows the value of that property. What the Court wishes the jury to understand is only this, — that the Court has known Mr. Wakefield for many years, and knows that he has lived out there, and considers him a qualified witness, and that is all. We will suspend.
“Mr. Thatcher: Exception to the additional remarks of the court.”

It will be observed that the jury returned the verdict fixing the value of the property to be appropriated at the same amount as that given in the opinion of value expressed by the witness Wake-field, and no other witness called by either of the parties fixed that sum as-the value of the property in question, nor did any witness testify to any sum as the value of such property that was approximately near to the value fixed by tbe witness Wake-field. Clearly, tbe first quoted statement of tbe court was erroneous in character and highly prejudicial, and we do not think it was cured in tbe statement latterly made by tbe court. In fact, in sucb latter statement, tbe trial judge said in substance that be bad known Mr. Wakefield for many years and knew that be lived out there, and that be considered him a qualified witness. Tbe trial judge went a good way in expressing bis own personal opinion as to tbe qualification of this expert witness, and sucb statement was well calculated to influence tbe mind of the jury. Of course, tbe trial judge passes upon tbe preliminary qualification of an expert witness as to tbe value of real estate, but, if be finds tbe witness is qualified, be must base that finding on tbe evidence adduced. What tbe trial judge said in tbe latter statement amounted to an expression of his own opinion as to tbe qualifications of this witness and was therefore erroneous and prejudicial in itself. Tbe inference is plain that these erroneous and prejudicial statements were effective in inducing tbe verdict which was returned. It is true that as a rule inadvertent remarks made by a trial judge may be cured by him by properly instructing tbe jury with regard thereto, but when we consider tbe facts and circumstances surrounding tbe trial of this case, in tbe light of tbe verdict returned, we are compelled to tbe conclusion that tbe court below erred to tbe prejudice of tbe plaintiff in error. We are mindful of tbe difficulties encountered by a trial judge in tbe course of a jury trial and know that inadvertent remarks may escape him in tbe beat of contest; and, being conscious of tbe integrity of purpose and the ability of the trial judge, we can justly offer no criticism of the conduct of the case other than that the utterances were inadvertent.

Complaint is made that the court erred in refusing requests to charge before argument submitted by defendant below. We think upon retrial request No. 14 should be given, although Nos. 12 and 13 cover in part the same ground.

We find no other error apparent upon the face of the record. For the reasons given the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Lloyd and Richards, JJ., concur.  