Public Service Co. of Indiana, Inc. v. Levenstein Bros. Realty Co.

• Decision Date: 20 May 1965
• Docket Number: No. 30211,30211
• Citation: 246 Ind. 520,207 N.E.2d 202
• Parties: PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellant and Cross-Appellee, v. LEVENSTEIN BROS. REALTY CO., Inc., Paula Levenstein Millman, Louise Levenstein Litwack, Barbara Rostov Wenbert, Susan Rostov, Freida Mae Prensky, David Prensky, Mose S. Levenstein, Trustee Under Item Six of the Last Will and Testament of Alex Levenstein, Deceased, for the Benefit of Ann Levenstein, Sarah Hahn and Others. Mose S. Levenstein, Trustee Under Item Six of the Last Will and Testament of Abie Levenstein, Deceased, for the Benefit of Ann Levenstein, Sarah Hahn and Others, and Bill Markley, Appellees and Cross-Appellants.
• Court: Indiana Supreme Court

Page 202

207 N.E.2d 202

246 Ind. 520

PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellant and Cross-Appellee, v. LEVENSTEIN BROS. REALTY CO., Inc., Paula Levenstein Millman Louise Levenstein Litwack, Barbara Rostov Wenbert, Susan Rostov, Freida Mae Prensky, David Prensky, Mose S Levenstein, Trustee Under Item Six of the Last Will and Testament of Alex Levenstein, Deceased, for the Benefit of Ann Levenstein, Sarah Hahn and Others. Mose S. Levenstein Trustee Under Item Six of the Last Will and Testament of Abie Levenstein, Deceased, for the Benefit of Ann Levenstein, Sarah Hahn and Others, and Bill Markley Appellees and Cross-Appellants.

No. 30211.

Supreme Court of Indiana.

May 20, 1965.

Paul G. Jasper, Charles W. Campbell, Greg K. Kimberlin, Plainfield, Richard T. Lineback, Greenfield, Brunner, Brown & Brunner, Shelbyville, for appellant.

Glenn T. Williams, Greenfield, Wilbur F. Pell, Jr., Shelbyville, Pell & Matchett, Shelbyville, of counsel, for appellee.

LANDIS, Judge.

Appellant utility brought suit for the condemnation of a 200 foot easement strip over certain real estate owned by appellees situated in Shelby County, Indiana. Appraisers were appointed to assess damages and filed their appraisement in the amount of $11,287.50. Appellant and appellees each excepted to the appraisers' report and issues were formed and trial was had by jury resulting in a verdict in the amount of $14,500.00 with interest at the rate of 6% per annum. Appellant has assigned error on the overruling of the motion for new trial.

Appellant first contends the verdict of the jury is excessive for the reason that it exceeds the highest figure estimated by competent credible evidence.

The record reveals the testimony of five (5) witnesses for appellees who estimated damages from $13,775.00 to $28,000.00, and the testimony of eight (8) witnesses for appellant who estimated damages from $2,800 to $5,000.

The evidence is without dispute that appellant by its complaint appropriated and condemned a 200 foot easement strip for the purpose of erecting, operating, and maintaining electric transmission lines across appellees' property. The strip was approximately 1,534 feet in length and involved acreage of 7.05 acres. Appellant could construct not to exceed two steel towers on the strip with appellees-landowners retaining the right to use the easement strip in any manner not inconsistent with the easement interest appropriated. The easement strip separated the north 15 acres from the balance of the tract.

Appellant has attacked the probative effect of the testimony of appellees' witnesses as to value contending the opinions reached by such witnesses were based upon erroneous information and assumptions.

Appellant has contended, for example, that the testimony of Earl F. Hammond, president of the Shelby National Bank, was valueless as the witness's figure of $23,050.00 as to damages was predicated upon the assumption that the 15 acre tract to the north of the right-of-way was a complete severance and was cut off from the rest of the area whereas in fact the owners retained the right to use the strip in any manner not inconsistent with the easement.

Appellant's contention is not supported by the record, however, for as appellees have pointed out the witness Hammond did not testify there was a complete severance but in actuality stated there was not a complete severance.

Another witness, Mose Levenstein, one of defendants-appellees, the president of Levenstein Bros. Realty Co., Inc., who was conceded by the parties to be a previous owner of the property in question, testified without objection that the difference between the fair market value of the property immediately before and after the condemnation was $20,000.00. He was not cross-examined by appellant as to such testimony nor was his competency questioned.

Further it appears here the jury viewed the premises in question and could thus after a personal inspection of the property have weighed and considered the various conflicts in the evidence from the 13 different witnesses for appellant and appellees as to valuation and the particular interests taken. The jury's verdict of $14,500 was well within the range of the testimony of the above witnesses and it is not our province as a court of review to invade the jury's function in weighing conflicting evidence. As the Court stated in Forest Preserve Dist. v. Kercher (1946), 394 Ill. 11, 25, 66 N.E.2d 873, 881:

'It is true there is considerable conflict as to the use of the particular parcels and a conflict in values. The jury, however, viewed the property and had the full benefit of such view in considering the evidence and arguments. It is the rule in this State that where damages are awarded by a jury in a proceeding in which the evidence is conflicting, and the jury views the premises and fixes the amount of compensation within the range of the evidence, its verdict will not be disturbed unless there has been a clear and palpable mistake or the verdict was the result of passion and prejudice.'

Appellant has next contended the court erred in permitting Wilbur F. Pell, Jr., to testify as a witness over appellant's objection to the amount of acreage of allegedly comparable real estate which had been purchased by the General Electric Company. Appellant had objected that witness Pell, who as attorney had represented General Electric in the transaction, should not be permitted to answer the question but that under the best evidence rule the best evidence was the deeds themselves.

We are unable to see how appellant could possibly have been harmed by the above ruling of the court. The record discloses that the witness Berkley Duck, a real estate broker from Indianapolis, had previously testified without objection to the same effect as the witness Pell regarding the amount of acreage of said real estate and it further appears the deeds themselves (exhibits 25 and 26) were later introduced without objection establishing the same facts as to acreage as Pell had previously testified. We must conclude the evidence was cumulative and no reversible error was committed by the trial court by this ruling. Hook v. Dorsam (1964), Ind.App., 196 N.E.2d 416, 418; Roesner v. American Car & Foundry Co. (1937), 104 Ind.App. 55, 59, 5 N.E.2d 688, 689. 2 I.L.E. Appeals Sec. 620, p. 635.

Appellant further contends the court erred in admitting over its objection appellees' exhibit 18 which was a written option agreement for the purchase of adjoining real estate and also personal property. We are again unable to see how this ruling could have been harmful to appellant as the objected-to exhibit showed an offer to purchase for $1,000 an acre; and appellant's own witness, Paul Starrett, testified without objection that the property in question in fact was sold for $1,000 an acre. The evidence was obviously cumulative.

Appellant has further contended the court erred in permitting the witness Wilbur F. Pell, Jr., to testify over its objection as to his opinion concerning the value of certain real estate which he had formerly owned. He stated this was $42,500. Appellant's objection to the question was '* * * for the reason that the only evidence admissable [sic] would be sales and not opinions as to value'. Appellant's objection was not as full and complete as it properly could have been as appellant made no reference to the fact that neighboring land was here involved and that facts rather than opinions could only be testified to in regard to such real estate, if that was its objection. However, in any event we are unable to see how appellant could have been seriously harmed by such evidence in this case as the witness Berkley Duck had previously testified without objection that the same real estate had sold for $40,000. The evidence was therefore again cumulative in nature.

Appellant also contends error was committed in permitting the witness McColley to testify as to fair market value of certain real estate and the house and improvements...