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Myers v. Arnold

OPINION FILED APRIL 11, 1980.

WILLIAM DEAN MYERS ET AL., PLAINTIFFS-APPELLEES,

v.

HOWARD ARNOLD ET AL., DEFENDANTS. — (HOWARD ARNOLD CONSTRUCTION, INC., DEFENDANT-APPELLANT.)



Appeal from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, JR., Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

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 ...


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