Roark v. Musgrave

• Decision Date: 02 September 1976
• Docket Number: No. 75--528,75--528
• Citation: 41 Ill.App.3d 1008,355 N.E.2d 91
• Parties: Logan ROARK, Jr., Plaintiff-Appellee, v. Larry MUSGRAVE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 91

355 N.E.2d 91

41 Ill.App.3d 1008

Logan ROARK, Jr., Plaintiff-Appellee, v. Larry MUSGRAVE, Defendant-Appellant.

No. 75--528.

Appellate Court of Illinois, Fifth District.

Sept. 2, 1976.

C. William Fechtig, Carmi, for defendant-appellant.

Robert H. Rath, Harrisburg, for plaintiff-appellee.

KARNS, Presiding Justice.

Defendant Larry Musgrave appeals from a judgment of the Circuit Court of Hardin County awarding plaintiff-appellee Logan Roark, Jr., actual damages of $4,280.18 and punitive damages of $1,000.00 for defendant's wrongful cutting and removal of some 140 trees from plaintiff's land. The only issues raised here are whether the court below applied an improper measure of damages, and whether it erred in assessing punitive damages.

The complaint was in two counts, and was framed in the language of an action in trespass. The first count alleged that defendant came upon plaintiff's property and cut and removed large quantities of timber without plaintiff's knowledge and permission; that young timber growth on the land was damaged and destroyed, resulting in erosion of the land; that fences were damaged and destroyed; and that trimmings from the cutting and removal of the timber interfered with the natural drainage of the land. The second count incorporated by reference the allegations of the first; added the allegation that the defendant's acts were done knowingly, intentionally, and maliciously; and prayed judgment for punitive or exemplary damages.

Plaintiff Roark is a 49-year-old school psychologist living in Taylorville, Illinois. He was reared in Southern Illinois, and anticipates building a home on the 120 acres he owns north of Elizabethtown when he retires at age 55. He bought the property in 1970. The land is rough and hilly, and presently accessible only by horse or four-wheel-drive vehicle. No one has ever asked his permission to harvest the timber on the land, nor has he sought any buyers. He would not want to sell a single tree out of it, he testified, because of his interest in ecology:

'I think too many of our natureal resources are being destroyed, and I'm more aware of it in the central part of the State than down here and I'd like to see more of this timber kept intact, with more of this rough land where there could be deer and where you can fish and hunt or whatever.'

The plaintiff called three expert witnesses, each of whom had viewed the land. The district forester for the state department of conservation testified that he had examined the property at the request of plaintiff; he found fences cut, a road worn by heavy equipment going in and out, and timber, apparently the largest and best trees, cut in a diagonal swath across the northernmost 40-acre tract. He estimated the volume of the timber taken, which was mostly oak, at 24,826 board feet.

A real estate broker and appraiser testified without objection that in his opinion the property had been depreciated 'from an aesthetic or recreational point of view' by removal of the trees. Over a general objection, he estimated the depreciation at $20.00 an acre to the 40 acres from which the trees were taken.

A forestry teacher who also operated a private forestry consulting firm testified that he found the boundaries between the tract from which the trees were taken and the adjoining property readily discernible. He testified without objection that the value of the timber removed was $1,390.18; that the cost of hiring the necessary men and equipment to clean up the tree trimmings left behind would be between $2,000.00 and $3,000.00; and that the cost of preventing further erosion from a 250-foot-long skid trail left on plaintiff's property would be about $90.00.

The defendant, a logger and timber dealer from Fairfield, Illinois, testified that he had purchased timber from the owner of land adjacent to the plaintiff's property and contracted with another man to do the actual cutting. He admitted that he had cut fences and hauled logs across the 40-acre tract from which the trees were taken but contended that he did not know at the time that the trees were being taken from plaintiff's land. ¹ He had been told by the landowner who had sold him timber that a four-strand barbed wire fence surrounded his property, but he never attempted to ascertain exactly where the boundary lines lay. Defendant acknowledged that the man cutting the trees had no way of knowing the location of the timber defendant had purchased other than by what defendant told him. Another neighboring landowner eventually told defendant that he was cutting trees from the wrong land.

On appeal defendant contends that plaintiff is entitled to recover only the value of the timber plus the difference between the fair cash market value of the injured land before and after the injury. Defendant does not quarrel with $1,390.18 as the value of the timber removed, but argues that plaintiff failed to establish depreciation by competent evidence in that the only evidence was the real estate appraiser's conclusion of a loss in 'aesthetic' and 'recretional' value and that nothing should have been allowed for the cost of cleaning up and restoring the property. Finally, defendant argues that his conduct, while a 'regrettable mistake,' was not malicious, and therefore punitive damages should not have been imposed.

We first note that as a general rule an objection to the admission and consideration of evidence not properly made at trial may not be made for the first time in a court of review. Dailey v. Meredith, 56 Ill.App.2d 230, 205 N.E.2d 640 (5th Dist. 1965); Questelle v. Hamp, 9 Ill.App.3d 802, 293 N.E.2d 137 (5th Dist. 1973). At trial the defendant's only objection to any of the evidence on damages was a general objection to a question asking for the real estate appraiser's opinion of the amount of depreciation caused by the removal of the trees. As our supreme Court recently reemphasized:

'Objections must be sufficiently specific to make the ground for objection known to the trial court. A general objection will not preserve the question for review on appeal. * * * 'Parties cannot make a general objection upon the trial below, and then insist upon a specific objection in this court, which was not specified at all in the trial court. '' Dixon v. Industrial Commission, 60 Ill.2d 126, 132, 324 N.E.2d 393, 396 (1975).

Wigmore refers to this requirement of specificity as the 'cardinal principle' of objections to evidence. 1 Wigmore, Evidence § 18, at 332 (3d ed. 1940); See also McCormick, Evidence § 52 (2d ed. 1972).

Even had objections been properly made and preserved, however, we do not believe that the trial court applied an improper measure of damages. It is hornbook law that an award of damages aims first and foremost at compensation. The goal is to place the injured party as nearly as reasonably possible in the same position that he would have occupied had injury not been inflicted. The measure of damages is peculiarly a question for the trier of fact, based on a proper consideration of all relevant facts. So-called 'rules' as to the proper measure of damages in a particular type of case are guides only, and should not be applied in an arbitrary, formulaic, or inflexible manner. See, e.g., 25 C.J.S. Damages § 84, at p. 923; Annot., 69 A.L.R.2d 1335, 1336, 1340 (1960); Standard Oil Co. of New Jersey v. Southern Pacific Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890 (1925).

Defendant-appellant speculates that the trial court arrived at its award of actual damages as follows: market value of timber wrongfully cut and removed, $1,390.18; cost of repairing the damage to the land caused by the removal of the trees (cleaning up debris and preventing further erosion from the skid trail), $2,090.00; and depreciation in the value of the property for aesthetic and recreational purposes, $800.00. Even assuming that defendant is correct in his speculation, we find no evidence of duplication nor any improper element of damages.

An expert witness put the cost of removing debris and repairing the slash in the range between $2,090.00 and $3,090.00; the trial court's award is consistent with the lower of these estimates. The market value of the timber was not disputed. Another expert witness, the real estate agent testified that his opinion of the depreciation in the value of this land, held for recreational and possible residential purposes, was based solely on the aesthetic effect of most of the larger trees throughout the 40-acre tract having been removed.

Although of course we have no way of knowing what issue defendant meant to raise by his general objection to this testimony at trial, he states on appeal that plaintiff failed to establish depreciation by competent evidence. We disagree. The opinion of an expert is permitted because he has peculiar knowledge or experience not commonly possessed which renders his opinion an aid to the trier of fact in deciding the case. Merchants National Bank of Aurora v. Elgin, Joliet & Eastern Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809 (1971). The test of the competency of an expert witness is whether he discloses sufficient knowledge of his subject matter to entitle his opinion to go to the trier of fact. Piacentini v. Bonnefil, 69 Ill.App.2d 433, 217 N.E.2d 507 (1st Dist. 1966). We cannot find that the trial court abused its discretion in admitting the testimony of this real estate broker, who was experienced in appraising similar properties in the area and had first-hand knowledge of the condition of the property in question. ²

The real estate agent testified that his appraisal did not consider any elements of damage to the land other than the depreciation in aesthetic value caused by the removal of the trees. He did not purport to be testifying as to the total depreciation in value. We think that all the evidence introduced by plaintiff, including that as to value of the removed timber and the cost of removing tree trimmings and...