Myers v. Arnold

• Decision Date: 11 April 1980
• Docket Number: No. 15742,15742
• Parties: , 38 Ill.Dec. 228 William Dean MYERS and Anna J. Myers, Plaintiffs-Appellees, v. Howard ARNOLD, Defendant, and Howard Arnold Construction, Inc., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 316

403 N.E.2d 316

83 Ill.App.3d 1, 38 Ill.Dec. 228

William Dean MYERS and Anna J. Myers, Plaintiffs-Appellees, v. Howard ARNOLD, Defendant, and Howard Arnold Construction, Inc., a corporation, Defendant-Appellant.

No. 15742.

Appellate Court of Illinois, Fourth District.

April 11, 1980.

Ronald N. Hanley, Hanley, Traub & Hanley, Fairbury, for defendant-appellant.

Zanoni, Flynn & Prall, G. Michael Prall, Bloomington, for plaintiffs-appellees.

MILLS, Presiding Justice:

This case involves 60-80 truckloads of concrete all dumped on plaintiffs' property.

A jury found such dumping wrongful and gave plaintiffs a verdict of $12,000.

Defendant appeals, claiming: (1) The trial court erred when it allowed plaintiffs to recover the cost of repair rather than the diminution in market value; (2) the court erred in excluding certain evidence; and (3) the jury's decision is against the manifest weight of the evidence.

We affirm.

FACTS

In 1972 or 1973, the plaintiffs purchased a 20-acre tract of land near Leroy, Illinois. In July of 1974, they began constructing a residence on the western portion of this land and at the time of trial they were residing at this location. The land is divided diagonally by a creek and when the land was originally purchased, the plaintiffs intended to construct their present residence, sell it, and then build another residence on the eastern portion of the property.

The creek which ran through the plaintiffs' property created an erosion problem and it was thought that broken concrete could be used to correct this problem. In the fall of 1974, the plaintiffs discovered that the defendant was engaged in a road repair and construction project on U. S. Route 16 near Leroy. Plaintiff, Mrs. Anna Myers, contacted Howard Arnold, president of the defendant, about getting some concrete fill and he told her to see his job-site supervisor so that he could inspect the premises where the concrete was to be placed.

In October 1974, Mrs. Myers, along with her father, went to the construction site to talk to the job-site supervisor, Stanley Wojciechowski. At trial, Mrs. Myers testified that she asked the supervisor about getting "a couple of loads of concrete." Following this request, the supervisor, Mrs. Myers, and her father went to the plaintiffs' property and Mrs. Myers indicated the spot where the concrete should be dumped. According to Mrs. Myers' testimony, she told the supervisor that she wanted a couple of loads of concrete and that she preferred that it not include rubble or dirt.

The day after Mrs. Myers talked with the supervisor she received a call at her home in Bloomington where she then resided. Her father informed her that quite a bit of concrete had been delivered and he suggested she come and inspect it. When she arrived at the property, she discovered that the amount of concrete delivered far exceeded the amount desired. The concrete contained reinforcing rods, was stacked 8 feet high in some places, and covered an area approximately 50 X 150 feet. It had been placed where the plaintiffs intended to build the second house. Mrs. Myers immediately contacted Howard Arnold but he would not agree to remove the concrete.

Mrs. Myers' father, Ance Huff, testified that when he was at the construction site with his daughter, she told the supervisor she wanted two loads of concrete. Mr. Huff also stated that the supervisor said they could have all the concrete they wanted.

On the issue of damages, the plaintiffs presented the testimony of John Nord who is self-employed in the refuse removal and demolition business. He detailed the various costs for removing the concrete and estimated that the total expense would be $18,200. However, he admitted that if he were able to find area farmers who wanted the material for erosion control, the cost would be decreased because the material would not have to be hauled as far as he had planned when estimating the cost of removal.

Prior to resting their case, plaintiffs called Howard Arnold, president of defendant company, pursuant to section 60, and he testified that the contract price for the Leroy construction project was approximately $2,400,000.

Defendant presented the testimony of Stanley Wojciechowski. At the time of trial, he was employed as a sales representative for a heavy machinery distributor. In this position he never sold equipment to the defendant nor did he intend to because defendant was in the process of going out of business. Wojciechowski had held the sales representative position for two years but prior to that time he was employed by the defendant where he was the supervisor of the Leroy construction project.

Mr. Wojciechowski testified that when Mrs. Myers requested the concrete, she indicated that she wanted concrete from an area covering both sides of the road and at least several thousand feet long. When he told her that this was a large amount of material, she responded that she had a place for it. He denied that she had said she only wanted two loads. He also testified that 60 to 70 loads of concrete were then placed on plaintiffs' property and that Howard Arnold had previously told him to find out what Mrs. Myers wanted and give her the material.

The concrete from the Leroy construction project had been dumped at several locations including a cemetery about 8 miles from the project. Plaintiffs' property was only a mile or a mile and one-half from the construction project and defendant saved about $490 by dumping the concrete on the land belonging to plaintiffs.

Defense counsel asked Mr. Wojciechowski if he would have delivered the concrete to the Myers property if they had wanted only two loads. Plaintiffs' objection to this question was sustained. The court also sustained an objection to a question concerning why the defendant obtained releases from property owners after material is dumped on their land. Similarly, defendant was prevented from presenting evidence as to whether the State of Illinois required releases before payment. However, Mr. Wojciechowski did admit that he did not attempt to get a release from the plaintiffs.

In an offer of proof, the defendant presented evidence that the State retained some of the money due on a construction project until it receives releases from private property owners where material is dumped. Other evidence presented during the offer showed that if plaintiffs had asked for only two loads, they would probably have been told to meet the truck driver and show him where to place to broken concrete. Mr. Wojciechowski would not have had time to go to plaintiffs' property under those circumstances.

At the close of the first day of trial, defendant moved for a directed verdict, arguing that the plaintiffs had failed to present sufficient evidence on the issue of damages. The court asked for citations to authority on the issue of whether the plaintiffs had to show the diminution in market value as well as the cost of repair. At the beginning of the second day of trial, the defendant's motion was denied because the trial court concluded that the proper measure of damages was the cost of repair.

Defendant's president, Howard Arnold, testified that when Mrs. Myers contacted him in the fall of 1974 she said that she could use a "lot" of concrete. He also testified that she said she could use every bit of concrete that he had and he responded that this was a great deal of concrete. According to Mr. Arnold, Mrs. Myers persisted in her statement and he told her to contact the job-site supervisor. Mr. Arnold then contacted the supervisor and told him that Mrs. Myers could have the concrete. After the concrete was dumped, Mrs. Myers contacted Mr. Arnold again and her attitude was completely different. She did not want any concrete.

Finally, Mr. Arnold testified that when this 2.4 million dollar construction project was bid, the intent was to dump the concrete at a cemetery and this cost was figured into the job.

By way of an offer of proof, the defendant presented the testimony of a real estate appraiser who had examined plaintiffs' property four days before trial. The appraiser testified that on the date of trial the fair market value of the plaintiffs' property was $750 per acre. This value, however, was based only on the land and did not include plaintiffs' house. In 1974, plaintiffs' property would have been worth $650 per acre. The appraiser also testified that the fact that one-half acre of plaintiffs' property was covered with concrete would have no great effect on its value for resale purposes.

At the conference on instructions, the court over the defendant's objection ruled that it would give the plaintiffs' instruction concerning the measure of damages. This instruction measures damages by the reasonable expense of removing the concrete. The court therefore rejected defendant's tendered instruction which stated that the measure of damages was "the lesser of the reasonable expense of necessary repairs to the property which was damaged or the difference between the fair market value of the property immediately before the occurrence plus (sic ) its fair market value immediately after the occurrence."

I

The defendant argues that the trial court erred in failing to give its tendered instruction on the issue of damages. Defendant therefore claims that this case must be remanded because the verdict of $12,000 (which represents the cost of repair) far exceeds the diminution in the market value of the plaintiffs' property.

Initially, we note that defendant's tendered instruction did not state the rule on which the defendant relies. The tendered instruction would have informed the jury that the measure of damages was the lesser of the reasonable expense of repair or the difference in the fair market value of the property before the occurrence "plus" its fair market value after the occurrence. The word "plus" should not appear in this instruction. Illinois Pattern Jury...