Lake Roland Elevated Ry. Co. v. Weir

Boyd, J., delivered the opinion of the Court. The appellees recovered a judgment against the appellant for damages sustained by them by reason of the erection by the appellant of a structure for its elevated railway in front of their property on North street in the city of Baltimore. Adjoining the appellees’ property was what was known as the Maryland Paint Works, which belonged to the estate of Susanna Popplein, of which the Safe Deposit and Trust Company of Baltimore was trustee.' In the course of the examination of witnessses, W. W. McClellan, a real estate expert who was produced on behalf of the appellees, testified that he had been employed by the Safe Deposit and Trust Company to place a valuation on the Popplein lot in a division of the property which was contemplated by the heirs; that he had estimated the value of the lot prior to the erection of the elevated railway at $21,687.00 and then ²⁷⁵ deducted 20 per cent, to represent the damage done by it, and that in his opinion $17,500.00 represented its value after allowance had been made for the damage done. He stated that he had not discussed with the trustee the effect of the structure upon the market value of the lot.

John W. Marshall, who is secretary of the Trust Company and .who supervised the proceedings by which the property was allotted to two of the Popplein heirs, was called by the defendant. He testified to the fact that Mr. McClellan had been called upon to name a valuation so it could be submitted to the family; that he had no recollection that in his conferences with him the elevated structure was ever discussed or taken into consideration ; that he, the witness, had appraised the property at $ 15,000.00 and he “ never thought that that particular piece of property was injured by reason of the structure,” and gave his reason for that opinion. The witness was then asked the following question : “You spoke of a compromise between the Lake Roland Company and the Safe deposit and Trust Company of Baltimore, trustee. State whether, after the litigation was compromised, the Safe Deposit and Trust Company as trustee executed a deed of release for a sum of money to the Lake Roland Elevated Railway Company authorizing it to maintain their tracks opposite the structure ?” The question was objected to and the record does not show whether it was answered or not, but the defendant then offered in evidence a certified copy of release from the trustee to the railway company, which, after reciting the receipt of $500.00 in full settlement of all claims against the company for or on account of the construction or maintenance of the elevated railway, released the company from all damages.

The plaintiff having objected to the admission of the release, the Court sustained the objection and that ruling presents the only question that is before us. We cannot see the relevancy of that testimony from any view we take of it. We do not understand the appellant to contend that evidence of the value of the Popplein prop ²⁷⁶ erty was properly admitted at the instance of the appellees, the plaintiffs below, but it is contended that if it be conceded that it was incompetent, the offer of the appellant was. proper because the evidence produced by the plaintiffs, though incompetent, had been admitted and had injuriously affected the defendant and therefore it was competent for it to meet it with evidence which would otherwise have been inadmissible. The general rule is that the introduction of irrelevant testimony by one party will not justify the introduction of similar evidence by the other, for as was said in Walkup v. Pratt, 5 H. & J. 51 , “ such doctrine would lead to endless confusion and destroy all the established rules of evidence.” This rule has been followed in numerous cases, among which are.

Balt. & Susq. R. R. Co. v. Woodruff, 4 Md. 242 ; Warner v. Hardy, 6 Md. 525 ; Higgins v. Carlton, 28 Md. 115 ; Bannon v. Warfield, 42 Md. 22 , and Gorsuch v. Rutledge, 70 Md. 272 . We have been referred to no case in this State where the contrary has ever been held, unless the irrelevant evidence sought to be met had been admitted by the Court after objection made to it. That was the case in Milburn v. State, 1 Md. 1 .

The Court there said : “ This evidence on the part of the plaintiff was objected to, but the Court overruled the objection and the defendants excepted. The testimony having been given to the jury we are of the opinion that the Court erred in withholding from the same tribunal the testimony proposed to be given by William Biscoe, on behalf of the defendants. * * * Were the testimony offered by the plaintiff, and allowed by the Court inadmissible, yet, being admitted, the defendants had the right to rebut it. There is no principle bette'r established, or more familiar to the profession, than that testimony, inadmissible in itself, becomes competent and proper, by the admission of other testimony to which it may be a reply.” The statement in 70 Md. 272 , supra, relied on by the appellant, that “ in what we have said we do not wish to be considered as haying any reference to a case where incompetent evidence has been admitted on the ²⁷⁷ one side which may injuriously affect the opposite party,” is in perfect accord with this view. The Court went on to say “ it was decided in Milburn v. State, 1 Md.