Geohegan v. Union Elevated R. Co.

• Decision Date: 17 February 1915
• Docket Number: No. 9535.,9535.
• Citation: 266 Ill. 482,107 N.E. 786
• Parties: GEOHEGAN et al. v. UNION ELEVATED R. CO. et al.
• Court: Illinois Supreme Court

266 Ill. 482

107 N.E. 786

GEOHEGAN et al.

v.UNION ELEVATED R. CO. et al.

No. 9535.

Supreme Court of Illinois.

Feb. 17, 1915.

Appeal from Superior Court, Cook County; Wm. E. Dever, Judge.

Action by John E. Geohegan and others against the Union Elevated Railroad Company and others. From a judgment for plaintiffs, defendants appeal, and plaintiffs assign cross-errors. Reversed and remanded.Addison L. Gardner, Francis W. Walker, Randall W. Burns, and Roger L. Foote, all of Chicago, for appellants.

Harry S. Mecartney, of Chicago, for appellees.

CARTER, J.

This was an action brought in the superior court of Cook county by appellees, against appellants, to recover damages to certain real estate located on Fifth avenue, in Chicago, between Randolph and Lake streets, by reason of the construction, operation, and maintenance of the elevated railroad in front of said property. On trial before a jury a verdict for $7,200 in favor of appellees and against appellants was obtained and judgment entered thereon. This appeal followed.

[1] This is the second trial of the cause. The judgment for appellants in the former trial was reversed by this court. 258 Ill. 352, 101 N. E. 577. Both parties argue that the verdict is contrary to the evidence. Appellees have assigned cross-errors. Appellants argue that the property of appellees was greatly benefited by the construction and operation of the said elevated railroad and that the allowance of any damages was unwarranted by the evidence, while the appellees insist that the damages are most inadequate. This difference is due largely to counsel's different views of the law and methods of ascertaining the result. We deem a discussion of the weight of the evidence unnecessary, as the verdict is clearly within the range of the evidence and is not so manifestly against its weight that this court would set it aside for that reason.

Counsel for appellants complain that they were not permitted to prove sales or long-term leases of the property in question, or other property similarly situated, later than the year 1903 or 1904. The operation of the trains began in 1897. The object of the trial was to ascertain the actual effect of the construction, operation, and maintenance of the railroad on appellees' property. To prove this, evidence was admissible of the value of the property, and the facts having a tendency to show such value, for a reasonable time both before and after the doing of the acts complained of. The rule is well established that:

‘Evidence of the value of the property before and after the time when the damages are alleged to have been sustained is admissible, and the time within which such evidence shall be confined is a matter in the sound discretion of the trial court.’ Springer v. City of Chicago, 135 Ill. 552, 26 N. E. 514,12 L. R. A. 609.

In Lanquist v. City of Chicago, 200 Ill. 69, 65 N. E. 681, it was held proper to refuse evidence of the price plaintiff paid for his land seven years before a proceeding to condemn it was begun, because the time was too remote. In some cases it has been held that evidence of the condition at the time of the trial was competent, but the reason for the ruling in those cases was that the condition that existed had a bearing on the value of the property before and after the alleged damage, and in those cases the trial occurred within a short time after the alleged damage was committed. Here the trial was 16 years after the railroad was put in operation. The fact that no sales or long-term leases of this property, or property similarly situated, were made between 1895 and 1904, does not necessarily affect the reasonableness of the limit. In a case such as this, matters affecting the values of real estate are constantly occurring. The trial court did not abuse its discretion in limiting the time to six years after the occurrence complained of, within which such evidence should be confined.

Appellants further contend that the court erred in refusing to permit them to prove that the decrease in rents received from the building was due to the mismanagement of the property. Appellants proposed to prove that for the ten years beginning with 1897 the building produced $3,300 rent, under one management, and that in 1908, under a different management, it produced $8,300 rent. This might or might not have a tendency to prove improper management, but, like the evidence of sales, it was too remote from the period about which the controversy existed. The rulingsof the court did not prevent appellants from proving that appellees did not get the full rental value from the property for all the years in question down to 1903.

On motion of counsel for appellees, during the introduction of their testimony, the court announced that each side might introduce, by way of opinion evidence, the testimony of five witnesses. Appellees introduced three witnesses upon the question of the market value and rental before the construction of the road and after its operation was begun and the effect of such construction and operation on the property. The appellants introduced five witnesses-men engaged in the real estate business who were acquainted with the property in question and that in the vicinity and transactions in such property-and they also testified as to the effect of the railroad upon the appellees' property and other property affected thereby. Counsel for appellants then offered C. R. Bechtel as a witness to testify on this subject. He was a real estate dealer who had been in the business in the downtown district of Chicago since 1897 and had been familiar with this property since that time and had made a sale of property within a half block of its location. Counsel for appellees objected to his testifying as he was the sixth opinion witness on the question of values, and the objection was sustained. Two other witnesses then present in court were thereupon offered by appellants to testify as to their opinions as to the effect on the value of the property by the construction and operation of said elevated railroad. On objection the court refused to permit them to testify. It is most carnestly insisted that the court erred in such refusal, as such effect on the value was the controlling feature of the case and the evidence already introduced on that question was sharply conflicting.

The general rule is that a trial court, in the exercise of a sound and reasonable discretion, has the power to limit the number of witnesses who shall testify to a particular fact. 1 Thompson on Trials (2d Ed.) § 353; 38 Cyc. [266 Ill. 487]1345. This has often been done on questions of value or damages, and the discretion of the trial court in these matters will not be interfered with except in cases of abuse. 2 Lewis on Eminent Domain (3d Ed.) § 653. This practice has been sanctioned even as to witnesses offered to prove the main facts in a case (Jones on Evidence [2d Ed.] § 814), though in some of the cases a distinction is made between direct and collateral issues (21 Ency. of Pl. & Pr. 891; 3 Ency. of Evidence, § 930). This court has discussed at various times the question of limiting the number of witnesses in the trial of a case. The authorities were reviewed at some length in West Skokie Drainage District v. Dawson, 243 Ill. 175, 90 N. E. 377,17 Ann. Cas. 776, and the conclusion was reached that the number of expert witnesses may be limited in the sound discretion of the court, as may also the number of witnesses to prove a given fact which is merely collateral to the main issue, but that such discretion must be exercised in a manner not arbitrary but judged by the special facts of the case. This case is found in 17 Ann. Cas. 776, with an elaborate note showing that the authorities in most jurisdictions uphold the conclusions reached by this court.

Counsel insist that the witnesses whose testimony was rejected on this point were not expert witnesses, and that this court, in White v. Hermann, 51 Ill. 243, 99 Am. Dec. 543, and Chicago,Burlington & Northern Railroad Co. v. Bowman, 122 Ill. 595, 13 N. E. 814, held that even if they were experts, as that term is used in the law, the court was without authority to limit their number on the question of value of real estate in a case of this character. In White v. Hermann, supra, this court reversed the case because the trial court had unduly limited the number of witnesses to four, who were to swear to the value of the property in question. What was said in the opinion on the point here in dispute was unnecessary to a decision of the case. In Chicago, Burlington & Northern Railroad Co. v. Bowman, supra, the only questioninvolved was which party should be taxed with the costs when the witnesses were limited in number.

In discussing the question of limiting the number of expert witnesses, the late Judge Cooley, in Fraser v. Jennison, 42 Mich. 206, 224, 3 N. W. 882, said:

‘There must be some limit to the reception of expert evidence, and that which was fixed in this case was quite liberal enough. To obtain such evidence is expensive, since desirable witnesses are not to be found in every community, but an army may be had if the court will consent to their examination; and if legal controversies are to be determined by the preponderance of voices, wealth, in all litigation in which expert evidence is important, may prevail almost of course. But one familiar with such litigation can but know that for the purposes of justice the examination of two conscientious and intelligent experts on a side is commonly better than to call more, and certainly when five on each side have been examined the limit of reasonable liberality has in most cases been reached. The jury cannot be aided by going farther.’

This court, in Green v. Phoenix Mutual Life Ins. Co., 134 Ill. 310, 316, 25 N. E. 583,10 L. R. A. 576, and note, stated:

‘The court may undoubtedly limit the number of witnesses called as experts'-citing Fraser v. Jennison, su...