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County of Cook v. Colonial Oil Corp.

OPINION FILED SEPTEMBER 18, 1958.

THE COUNTY OF COOK, APPELLEE,

v.

COLONIAL OIL CORPORATION ET AL. — (JACK KIRKA, APPELLANT.)



APPEAL from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 24, 1958.

Appellant, Jack Kirka, appeals directly to this court from a judgment in his favor and against the county of Cook, entered by the superior court of Cook County, in the amount of $52,000 as full compensation for the taking of appellant's property by eminent domain proceedings.

The county of Cook instituted eminent domain proceedings to acquire the parcel of land in question and other parcels for the South Route Expressway, a State-aid route and a Federal-aid interstate route.

The trial before the jury was on the sole question of the fair cash market value of the subject property as of March 27, 1957, the date of the filing of the petition to condemn. The property consisted of a two-story and basement, ordinary construction, apartment building containing eight flats situated at the southeast corner of 76th Street and Lafayette Avenue in the city of Chicago on a lot 40 feet by 160 feet deep to a 16-foot alley. The land is zoned for duplexes and the gross rental of the building in question was $8,340, with a net rental of about $3,800.

The county of Cook presented two opinion witnesses and the defendant four opinion witnesses as well as two other witnesses. Petitioner's witnesses valued the property at $50,000 and $49,000 respectively and defendant's opinion witnesses testified to values varying from $65,000 to $72,500.

The jury, after viewing the property, made an award of $52,000, and, after a post-trial motion by defendant was denied, this appeal followed.

The defendant contends that the jury's verdict and the judgment thereon should be reversed and remanded for new trial for the following alleged errors: (1) because of the trial court repeatedly making remarks and interposing rulings adverse to the appellant when no objections were made by opposing counsel, repeating unnecessary admonitions to appellant's counsel and interposing erroneous rulings on its own volition; (2) the admission in evidence of sales prices of two pieces of property; (3) the admission in evidence of the photograph of certain property at 69th and Princeton; (4) the trial court ruling as to the right of an appraiser to take into consideration reproduction costs; and (5) the trial court permitting petitioner's counsel to engage in conduct and to make a closing argument to the jury that was unfair, insulting, full of ridicule of appellant's witnesses and counsel, and so insinuating and vindictive as to be highly prejudicial to appellant.

It is well established that where an award is made by a jury in a proceeding in which the evidence is conflicting, and the jury views the property and fixes the amount of compensation within the range of the evidence, such a verdict will not be disturbed unless there has been a clear and palpable mistake or the verdict was the result of passion or prejudice. City of Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431; Department of Public Works and Buildings v. Lambert, 411 Ill. 183; City of Chicago v. Vaccarro, 408 Ill. 587; Forest Preserve Dist. v. Dearlove, 337 Ill. 555.

Inasmuch as the verdict in the case at bar is well within the range of the testimony presented and the jury did view the property in question, we have carefully and thoroughly read the record in this case to determine whether or not there was a clear mistake of law or conduct from which it must be concluded that the verdict was the result of passion or prejudice on the part of the jury.

As to the first error assigned by appellant, we must observe that the defendant does not contend in his briefs and argument that the jury's verdict is contrary to the preponderance of the evidence or that the verdict would have been other or different if the things he complains about had not occurred. There is no error assigned as to instructions given to the jury, so we must assume that the jury was fully, completely and correctly instructed as to the law of the case and that they followed the law in reaching their verdict. It is true that where a cause is tried before a jury the trial judge must not indicate by his conduct either favor or disfavor towards parties or witnesses. (People v. Giacomino, 347 Ill. 523.) At the same time the trial court has discretion in limiting cross-examination, and where facts have already been stated by a witness, questions which have for their object the repetition by a witness of what he has already said may be disallowed by the court. (Spohr v. City of Chicago, 206 Ill. 441; Chicago City Railway Co. v. Cooney, 196 Ill. 466.) Also, a trial court may properly give his reason for rulings upon evidence and must be accorded a reasonable latitude in so doing. Chicago City Railway Co. v. McLaughlin, 146 Ill. 353.

The first complaint of defendant is of a ruling by the court on its own motion that counsel for defendant was not to direct an argumentative question to the witness Shlaes. On direct examination the witness had testified he had worked for the county of Cook and earlier, on his cross-examination, had testified that he had represented the county in acquiring property. Thereafter defendant's counsel asked a question "You said on direct examination you represented the County of Cook" to which the court interposed an objection that counsel was arguing with the witness. The next time the court sustained an objection on his own motion was in an immediate subsequent cross-examination of the same witness. After the witness had stated he had helped negotiate for the purchase of property by certain public bodies the following occurred:

"Q. And under those conditions there was always present the right of the public body to condemn?

A. Certainly.

Q. That was not an indication of market ...


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