22 Am. Jur. 2d Damages § 421 (1988) American …documents.jdsupra.com/3da27f33-d6b9-49e7-963c-46bba07ad105.pdf · American Jurisprudence, Second Edition Current through the May

22 Am. Jur. 2d Damages § 421 (1988)

American Jurisprudence, Second Edition

Current through the May 2000 Cumulative Supplement

Damages

Jack K. Levin, J.D., Irwin J. Schiffres, J.D., Robert R. Crane, J.D. and John B. Spitzer, J.D. III. Compensatory Damages [§§ 23-682] D. Measure and Elements in Tort Cases [§§ 130-450] 4. Injury to Property Rights [§§ 399-450] c. Property Attached to or Forming Part of Realty [§§ 415-426] (2). Buildings and Structures [§§ 418-422] § 421. --EFFECT OF BUILDING REGULATIONS An award of damages of the cost of restoring a building to its condition before the incident should be sufficient to repair the damage caused by the defendant in a manner that meets existing building regulations and allows the plaintiff to use it for all purposes for which it was being lawfully used at the time of the tort. [FN30] There is authority that the defendant is liable for an increased cost of reconstruction attributable to building regulations which do not permit the restoration of the building with the same materials or in the same manner used in the erection of the original building, on the basis that the plaintiffs would not have been forced to rebuild in accordance with the new regulations but for the defendant’s act resulting in the destruction of the building, [FN31] but there is also authority that the defendant is only liable for the actual damage to the building and that the plaintiff is not entitled to recover the value of a new building erected in conformity with a new building code. [FN32] Damages are also recoverable for a delay due to problems the plaintiff had arranging financing to reconstruct the building in accordance with new regulations. [FN33]

Where an ordinance precludes repair by the plaintiff, he may recover on the basis of a total loss, even though some portion of the building remains which might otherwise have been available in rebuilding. [FN34]

[FN30]. A. H. Jacobson Co. v Commercial Union Assur. Co. (DC Minn) 83 F Supp 674; Zindell v Central Mut. Ins. Co., 222 Wis 575, 269 NW 327, 107 ALR 1116.

[FN31]. Zindell v Central Mut. Ins. Co., 222 Wis 575, 269 NW 327, 107 ALR 1116.

[FN32]. Long v Magnolia Hotel Co., 236 Miss 655, 111 So 2d 645, sugg of error sustained 236 Miss 684, 114 So 2d 667.

[FN33]. Zindell v Central Mut. Ins. Co., 222

Wis 575, 269 NW 327, 107 ALR 1116.

[FN34]. Ollie v Security Mut. Underwriters (CA4 SC) 235 F2d 932; Taylor v Aetna Casualty & Surety Co., 232 Ark 981, 341 SW2d 770, 90 ALR2d 787; Firemen’s Ins. Co. v Houle, 96 NH 30, 69 A2d 696, 13 ALR2d 612.

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Service Unlimited v. Elder, 542 N.W.2d 855 (Iowa Ct. App. 1995) (Court properly computed damages for inadequate insulation by using “cost of repair” instead of “reduction in value” where there was insufficient space between ceiling and roof to simply add additional layer of insulation over existing insulation, requiring installation of new insulated roof over existing roof, even though cost of repair was disproportionate to additional heating and cooling costs, where homeowners testified heating and cooling problems continued after larger air conditioner was installed, and they were still unable to maintain second level at comfortable temperature.); see

also Zindell v. Central Mutual Ins. Co. of Chicago, 269 N.W. 327 (Wis. 1936); Aetna Ins. Co. v.

3 Oaks Wrecking & Lumber Co., 382 N.E.2d 283 (Ill. App. 1978); Peluso v. Singer General

Precision, Inc., 365 N.E.2d 390 (Ill. App. 1977) (reasoning that such recovery will discourage the cutting of corners in meeting code requirements); and A.J. Jacobson Co. v. Commercial

Union Assur. Co., 83 F. Supp. 674 (D. Minn. 1949). But see Mercer v J. & M. Transp. Co., 103 Ga. Ct. App. 141, 118 SE.2d 716 (The proper measure of damages was not the cost of restoration, where a 25- to 30-year-old house was totally destroyed, and did not originally have plumbing, wiring, bathrooms, or modern heating, and where the cost of restoration would be far in excess of the difference in value before and after the injury to the premises.).


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(Cite as: 269 N.W. 327) <YELLOW LAG> Supreme Court of Wisconsin.

ZINDELL et al.

v. CENTRAL MUT. INS. CO. OF CHICAGO

et al.

Oct. 13, 1936. Appeal from a judgment of the Circuit Court for Walworth County; E. B. Belden, Judge. Affirmed. Action by E. E. Zindell, Marie Zindell, and Katherine Zindell against Britton Motor Service, Inc., and Delbert Arnold, and their respective automobile liability insurance carriers to recover damages to a building, which belonged to E. E. Zindell, subject to interests in his coplaintiffs, as the result of a collision between two motor vehicles alleged to have negligently been operated by the defendants above named. The defendants filed answers denying liability. Upon a trial by jury the court submitted questions for a special verdict. The jury, in addition to assessing plaintiffs’ damages, found that those damages were the result of causal negligence of the driver of the Britton Motor Service, Inc., and that Arnold’s driver was not negligent. Upon the verdict, judgment was entered for the recovery of plaintiffs’ damages from the Britton Motor Service, Inc., and its insurer, and the dismissal of the complaint against Arnold and his insurer. The Britton Motor Service, Inc., and its insurer appealed from that judgment. West Headnotes Appeal and Error k882(10) 30k882(10)

On appeal from judgment for plaintiffs in action for damages to garage, defendants could not complain of trial court’s erroneous ruling preventing plaintiffs from introducing proof to establish diminished value of garage, where such ruling was induced by defendants’ objections. Appeal and Error k1005(1) 30k1005(1) Jury’s findings as to negligence, which have been approved by trial court, cannot be set aside on appeal. Automobiles k171(4.1) 48Ak171(4.1) (Formerly 48Ak171(4)) Truck driver who approaching at lawful speed had entered intersection with lights in his favor before other truck had reached intersection had right of way. St.1935, §§ 85.12(3), 85.75. Automobiles k171(13) 48Ak171(13) Truck driver who approaching at lawful speed had entered intersection with lights in his favor before other truck had reached intersection had right of way and was entitled to assume, in absence of indication that driver of other truck was about to interfere with right of way, that other driver would not continue to proceed in violation of statute. St.1935, §§ 85.12(3), 85.75. Automobiles k245(14) 48Ak245(14) In action for damages to garage, resulting from collision between two trucks at highway intersection, whether driver approached intersection with lights in his favor before other truck had reached intersection and whether driver could have


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avoided collision by exercise of ordinary care held for jury. St.1935, §§ 85.12(3), 85.75. Damages k111 115k111 Owner of damaged building is ordinarily entitled to recover entire cost of restoring its former condition so that it can be used again for same purposes, provided that, if that cost exceeds diminution in value of building as result of injury, then recovery must be limited to amount of such diminution. Damages k111 115k111 Garage owners suing for damages to garage, resulting from collision between two trucks, held entitled to recover increased cost of reconstruction due to lawful regulations which did not permit rebuilding with same walls, notwithstanding repairs put garage in better condition than it was before injury where, because of defendants’ objections, proof was excluded showing amount of increase in value due to that better condition. Damages k174(3) 115k174(3) In action for damages to garage, evidence that delay in reconstruction was direct consequence of extent of injury to garage, evidence relating to negotiations between owners and Industrial Commission which required garage walls to be of greater thickness, and evidence relating to owners’ financial condition, held properly admitted. *328 Rouiller, Dougherty, Arnold & Kivett, of Milwaukee, for appellants. Godfrey & Arnold, of Elkhorn, for respondents. Moran & O’Brien, of Delavan, for

defendants. FRITZ, Justice. The plaintiffs in this action seek to recover for damage to a garage located at the intersection of highways 14 and 15, as the result of a collision between a truck which was owned by the defendant Arnold, and was eastbound on No. 15, and a truck which was owned by the defendant Britton Motor Service, Inc., (hereinafter referred to as Britton), and was northbound on No. 14. Each outfit consisted of a heavy 4-wheel tractor hauling a 2-wheel trailer. The collision occurred in the intersection on March 26, 1935, at 2:15 a. m. Both highways were concreted to a width of 35 feet. Traffic was controlled by automatic electric signal lights at the corners, with trip bars in the pavement, which were depressed upon wheels passing over them. The trip bar for the eastbound vehicles on No. 15 was 166.2 feet west of the center of the intersection, and the bar for northbound vehicles on No. 14 was 204.5 feet south of that center. If the red light was against an approaching vehicle, crossing a trip bar when there had been no traffic on the intersecting road for a period of five seconds, then upon that vehicle crossing the bar that red light remained so for 2 seconds, and then turned to green; and the green light on the intersecting road turned to amber for 2 seconds, and then to red. If, immediately after the vehicle approaching against the red light passed over the trip bar, another vehicle approaching on the intersecting street passed over the bar on that street, the light immediately flashed amber on the street that had the green light, and remained amber for the 2-second amber period and an additional 2-second period; and the red light remained on the opposite street for the 4-second interval, and then turned to green and remained so for a period of 7 seconds in favor of the driver who first passed over the


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bar. The jury found, in answer to questions submitted for a special verdict, that the damage to the garage was caused by the negligence of the driver of Britton’s truck in respect to lookout, management, and control; and that, on the other hand, Arnold’s driver was not negligent in respect to lookout, management, or control. The appellants contend that the court erred in approving the jury’s finding that Arnold’s driver was not negligent. The only person called to testify as a witness, who was at the intersection at the time of the collision and then observed what occurred, was Virgil Arnold, the driver of the Arnold truck. The Britton truck driver was killed in the collision. There was also a helper on each truck, but neither of them was awake at the time of the collision. Arnold’s testimony warranted the jury in fairly considering the following facts established. As Arnold approached the intersection, driving eastward, he saw that the traffic light was red and, therefore, took his foot off the accelerator and slowed down to 15 miles per hour as his truck rolled down an incline and over the trip bar. When he was 90 feet from the center of the intersection, that red light changed to green. When he was 60 feet from the *329 center of the intersection, or 25 feet before he entered it, he looked to the south and saw the headlights on Britton’s truck about 175 feet south of the intersection. He could not estimate its speed with certainty, and it appeared coming along with no indication of stopping. Because the green light was in his favor, he figured that he had plenty of time to go on across. However, when he was about 9 feet into the intersection or that distance west of the center thereof, he saw that the Britton truck was continuing and entering the intersection at a rate which told him that it was not intended to bring it to a

stop, and that if he then stopped there would be a head-on collision. To avoid that he desperately attempted to swerve to his left, but when he was 9 feet east of the center of the intersection, the Britton truck, which was still approaching head-on, struck the middle of the right side of the Arnold tractor. The front part thereof crashed into plaintiff’s garage, and it came to a stop with its cab wedged into the wall. Skid marks made by the Britton truck commenced 3 feet south of the center of the intersection and extended 9 feet to the east. [1][2][3] The only testimony materially in conflict with that of Arnold is testimony by the driver and a helper of another Britton truck, who claimed that, as they were following 400 feet behind the Britton truck which was in the collision, they saw that the signal light was green for northbound traffic when that truck entered the intersection, and that while it was doing so the Arnold truck dashed in ahead of it. However, the testimony of those two witnesses, and particularly their statement that the second Britton truck was following at a distance of but 400 feet, was rendered decidedly incredible by the testimony of three disinterested witnesses, who arrived at the intersection shortly after the crash. However, notwithstanding that conflict in testimony, the record well warranted the jury in believing that Arnold’s driver, upon crossing the trip bar at 15 miles per hour, had the green light turn in his favor when he was 90 feet from the center of the intersection; that when he was 60 feet from that point he saw the Britton truck headlights 175 feet south of the intersection, and, in the exercise of ordinary care, believed that he had time to cross safely because he had that light in his favor; that he did not then realize and, in the exercise of ordinary care, ought not to have realized, that the Britton truck would, in violation of sections 85.12 (3) and 85.75, Stats.,


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continue, without stopping or even slowing down, in utter disregard of the fact that the signal lights had turned against northbound traffic, and were in favor of east and westbound vehicles; and that it was not until Arnold was about 9 feet into the intersection, and only 9 feet west of the center thereof, that it became apparent to him, in the exercise of ordinary care, that the Britton truck, instead of stopping or yielding the right of way to Arnold, was then also entering the intersection. Inasmuch as the traffic was controlled by signal lights, and Arnold, approaching at a lawful speed, had entered the intersection with the lights in his favor, before the Britton truck had reached the intersection, Arnold had the right of way and was entitled to proceed in accordance with the signals and to assume, in the absence of some indication that the driver of the Britton truck was about to interfere with Arnold’s right of way, that the latter would not continue to proceed in violation of sections 85.12 (3) and 85.75, Stats. If Arnold was exercising ordinary care, he was entitled to rely upon the favorable signal light, until it should have become apparent to him, in time to enable him to avoid the collision by the exercise of ordinary care, that the Britton truck driver was going to proceed in disregard of the lights and the rules of the road. Baumann v. Home Laundry, 213 Wis. 78, 250 N. W. 773; Teas v. Eisenlord, 215 Wis. 455, 253 N. W. 795. Consequently, the issues as to Arnold’s negligence in the respects stated above were for the jury, and its findings thereon, which have been approved by the court, cannot be set aside on appeal. Trautmann v. Chas. Schefft & Sons Co., 201 Wis. 113, 228 N.W. 741. Appellants further contend that the court erred in sustaining the jury’s assessment of damages in several respects, and particularly in fixing the damage to the garage at $3,251. That award was evidently based on the cost

of rebuilding the ruined brick walls with the walls 12 inches instead of 8 inches wide as they were before the impact. That increased width was required because of regulations prescribed by the State Industrial Commission since the erection of the original walls. Those regulations had to be complied with whenever the cost of repairs

*330 exceeded 50 per cent. of the cost of any complete part of the building. The expert witnesses testified that compliance with that regulation would cause an increase in the cost of rebuilding which they estimated at from $500 to $950. On the trial, as well as on this appeal, the appellants contended that the amount to be allowed as damages for the injury to the building was the cost of replacement less an allowance for depreciation from use or age. On the other hand, the plaintiffs contended that, in order to enable them to establish their damage, the court should receive evidence as to the amount that it would cost to repair the building, and also as to the amount of its diminished value as the result of the collision; and should then adopt as the measure of damages the lesser of these two amounts. Under plaintiffs’ contention the procedure and measure of damages would have been in substantial compliance with the rule approved in Hickman v. Wellauer, 169 Wis. 18, 171 N.W. 635; and Bunker v. Hudson, 122 Wis. 43, 99 N.W. 448. [4] However, when plaintiffs sought to prove the diminished value by proving the value of the building as it was before and after the collision, objections interposed by the defendants were sustained, and the court ruled that “the rule of damages in this case is the cost of restoring the building to the condition it was before the accident, either by repairing, if that is allowed, and then if not by rebuilding under the code.” As the result of sustaining the appellants’ objections, the plaintiffs were prevented from introducing proof to establish the


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diminished value of the building, in accordance with the rule recognized in the Hickman and Bunker Cases, supra. The court’s ruling in that respect was erroneous, but as that ruling was induced by the appellants’ objections, they cannot complain now of the court’s action, and the absence of any proof in the record as to the amount of the diminution in the value of the building. Nowaczyk v. Marathon County, 205 Wis. 536, 238 N.W. 383; Sherwood v. Hulett, 134 Wis. 561, 114 N. W. 111; Evans v. Enloe, 64 Wis. 671, 26 N.W. 170. As the result of that erroneous ruling, the only proof admitted in relation to the amount of plaintiffs’ damages was as to the cost of restoring the building; and in that respect the court instructed the jury that plaintiffs’ damages could include the cost of restoring the building by means of 12-inch walls, if the state Building Code did not permit the restoration thereof by the use of 8-inch walls. No precedent or authority, which is directly in point, has been cited or found as to the liability of a tort-feasor, whose negligence caused injury to a building, for an increased cost in reconstruction due to building regulations, which do not permit the restoration thereof with the same materials used in the erection of the building originally. The question as to the damages recoverable under such circumstances was involved in Jesel v. Benas, 177 Mo. App. 708, 160 S. W. 528, but in that case there was proof that the cost would be no greater for a 13-inch than for a 9-inch wall. On the other hand, in actions to recover on insurance policies for losses by fire, it has been held that, if the insurer elects to rebuild, it is liable for such an increase in cost. Brady v. Northwestern Ins. Co., 11 Mich. 425; Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103, 18 S.W. 337, 59 Am.Rep. 613; Fire Ass’n of Philadephia v. Rosenthal, 108 Pa. 474, 1 A. 303, 306; Pennsylvania Co. for Ins. on Lives & Granting Annuities v. Philadelphia

Contributionship for Ins., etc., 201 Pa. 497, 51 A. 351, 352, 57 L.R.A. 510; Brown v. The Royal Ins. Co., 1 El. & E1. 856. [5][6] In the case at bar the plaintiffs are certainly entitled to have the garage restored so that it can be used for all purposes for which it was being lawfully used at the time of the collision. They are in no way responsible for an increase in the cost of reconstruction due to the lawful regulations which do not permit rebuilding with but 8-inch walls. But for the causal negligence of the Britton truck driver, those regulations would not have occasioned any expense to the plaintiffs or interfered with their continued use of the building as theretofore constructed. If the increase in the cost of repairs were due to a rise in the market price of materials required to restore the walls with the same materials as were originally used, there would seem to be no reason for not holding that the tort-feasor’s liability includes that increase. In either event, his obligation, in so far as the cost of reconstruction is concerned, should be measured by the cost thereof under the conditions existing or lawfully imposed at the time his negligence caused the injury. Consequently, the owner of a damaged building is ordinarily entitled to recover the entire cost of restoring its former condition

*331 so that it can be used again for the same purposes, provided that, if that cost exceeds the diminution in the value of the building as the result of the injury, then the recovery must be limited to the amount of such diminution. However, as on the trial the appellants induced the court to exclude proof intended to establish such diminution in value, they are not now entitled to have their liability limited to that amount. Although the cost which the owner seeks to recover is for repairs which put the building in better condition than it was before the injury, that cost will be the basis on which to assess the damages in the absence of proof


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showing the amount of the increase in value due to that better condition. Mueller R. E. & I. Co. v. Cohen, 158 Wis. 461, 465, 149 N. W. 154. [7] Appellants also contend that the court erred in approving amounts assessed by the jury for damages sustained in several respects due to delay in reconstructing the building because of the problems that arose on account of the Industrial Commission’s building regulations, and also the plaintiffs’ inability to finance the reconstruction at the increase in cost occasioned by those regulations. That most of the delay was the direct and unavoidable consequence of the extent of the injury to plaintiffs’ building was established in part by evidence in relation to conferences, negotiations, and correspondence between the plaintiffs and the Industrial Commission, and the latter’s rules and orders; and also in relation to plaintiffs’ financial condition. Considerable of that evidence was received over the appellants’ objections, and they contend that the admission thereof constituted prejudicial error. Those contentions cannot be

sustained. The evidence in relation to those matters was material on the issues as to whether the difficulties and delay encountered were the result of the nature and extent of the injury to the building, and whether they were unavoidable so far as the plaintiffs were concerned. Those issues were directly involved in determining whether, because of that delay, the plaintiffs were entitled to recover the various items of damage they claim to have sustained in the several respects referred to above; and the evidence admitted over appellants’ objections in relation to those issues and matters fully warranted finding the amounts assessed by the jury as the damages sustained in those respects by the plaintiffs as the result of the collision. There is no prejudicial error in any respect and the judgment must be affirmed. Judgment affirmed. 269 N.W. 327, 222 Wis. 575, 107 A.L.R. 1116 END OF DOCUMENT


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(Cite as: 47 Ill.App.3d 842, 365 N.E.2d

390, 8 Ill.Dec. 152)

<YELLOW FLAG> Appellate Court of Illinois, First District,

Fifth Division.

Lillian PELUSO, Administrator of the Estate of Thomas H. Peluso, and National

Engineering Company, Plaintiffs-Appellees, v.

SINGER GENERAL PRECISION, INC., LINK DIVISION and Joseph Philipson,

Defendants- Appellants.

No. 61967.

April 7, 1977.

An action for wrongful death was brought by administrator of estate of chemist who was killed by the explosion of a mixing machine filled with a chemical mixture of defendants. The decedent’s employer also sought to recover for property damage to its laboratory resulting from the explosion. The Cook County Circuit Court, John C. Fitzgerald, J., entered judgment in favor of plaintiffs, and defendants appealed. The Appellate Court, Lorenz, J., held, inter alia, that while counsel for the administrator improperly argued that the administrator would have sued gas company if she believed it had caused decedent’s death, and while the court should have sustained defense objection to such argument, the error was not reversible in light of the clear evidence that there had been a chemical explosion, not a natural gas explosion, and in light of one defendant’s injection of a gas explosion theory into the case; that defendants’ claim of trial court error in preventing cross-examination of administrator’s expert economist regarding reductions in decedent’s future earnings by income taxes was unavailing, since, first, defendants failed to preserve that issue for

appeal, and since, even assuming the trial court’s ruling was erroneous, defendants did not show that they were prejudiced by the ruling; and that the cost of repair can include the expense necessary to conform those repairs to existing building codes. Affirmed. Sullivan, P. J., filed a specially concurring opinion. West Headnotes [1] Appeal and Error k417(1) 30k417(1) While plaintiff appellee sought dismissal of the appeal because defendants had abandoned the relief requested in their notice of appeal, i. e., a reversal of the judgment and entry of judgment for defendants, by now seeking a reversal and remandment for a new trial on all or part of the issues in their original brief in the Appellate Court, defendants’ notice of appeal clearly apprised plaintiff that defendants were appealing from the trial court’s judgment and from the denial of their posttrial motion which included a prayer for new trial. [2] Appeal and Error k411 30k411 [2] Appeal and Error k436 30k436 Notice of Appeal vests jurisdiction in the Appellate Court and informs the party in whose favor a judgment has been rendered that the appellant will seek review of the case. [3] Appeal and Error k422 30k422


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The failure to include a prayer for relief in the notice of appeal is merely an error in form, not an error of substance, and the Appellate Court does not lose its jurisdiction by technical errors of that sort where the appellee is not otherwise prejudiced. Supreme Court Rules, rule 303(c)(2), S.H.A. ch. 110A, § 303(c)(2). [4] Appeal and Error k1060.1(2.1) 30k1060.1(2.1) (Formerly 30k1060.1(2)) While counsel for the administrator of decedent, a chemist who was killed by the explosion of a mixing machine filled with a chemical mixture of defendants, improperly argued that the administrator would have sued gas company if she believed it had caused decedent’s death, and while the court should have sustained defense objection to such argument, the error was not reversible in light of the clear evidence that there had been a chemical explosion, not a natural gas explosion, and in light of one defendant’s injection of a gas explosion theory into the case. [5] Appeal and Error k1060.1(2.1) 30k1060.1(2.1) (Formerly 30k1060.1(2)) Arguments concerning why a party was not sued, though improper, do not constitute reversible error unless a defendant can show it was prejudiced thereby and denied a fair trial. [6] Evidence k553(4) 157k553(4) It is within the sound discretion of the trial court to allow a hypothetical question although the supporting evidence has not already been adduced if the interrogating counsel gives assurance it will be produced later.

[7] Appeal and Error k1048(6) 30k1048(6) Even assuming that defense counsel’s in-chambers proffer as to the testimony of a certain witness constituted an assurance of subsequent testimony that gas had accumulated and exploded, the actual testimony later given by said witness, to the effect that the explosion was caused by aluminum dust and that he had never considered natural gas as the explosion’s cause, showed that defendants were not prejudiced by the trial court’s refusal to allow one of plaintiff’s experts to answer a hypothetical on cross-examination concerning the possibility of a gas explosion. [8] Appeal and Error k205 30k205 [8] Appeal and Error k1048(6) 30k1048(6) In wrongful death action, defendants’ claim of trial court error in preventing cross-examination of plaintiff administrator’s expert economist regarding reductions in decedent’s future earnings by income taxes was unavailing, since, first, defendants failed to preserve that issue for appeal, making no offer of proof following the trial court’s adverse ruling, and since, secondly, even assuming the trial court’s ruling was erroneous, defendants did not show that they were prejudiced by the ruling. [9] Trial k45(1) 388k45(1) An offer of proof is necessary in order to apprise the court of the substance of the testimony sought to be admitted.


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[10] Appeal and Error k1026 30k1026 A court of review can reverse a trial court’s judgment only when an alleged error is shown to have been prejudicial to an appellant’s right to a fair trial. [11] Damages k103 115k103 Damages are generally measured by the cost of repair, not by the diminution in value. [12] Damages k116 115k116 Cost of repair can include the expense necessary to conform those repairs to existing building codes. *843 **392 ***154 Kirkland & Ellis, Chicago, for defendants-appellants, Singer Precision, Inc. and Joseph Philipson; Gary M. Elden, Bruce A. Hubbard, Scott E. Early, Chicago, of counsel. Philip H. Corboy and Associates, Chicago, for plaintiff-appellee, Lillian Peluso; Philip H. Corboy, Thomas A. Demetrio, Chicago, of counsel. Clausen, Miller, Gorman, Caffrey & Witous, Chicago, for plaintiff-appellee, National Engineering Co.; James T. Ferrini, Frank L. Schneider, Chicago, of counsel. LORENZ, Justice: Defendants appeal from a judgment in favor of plaintiff Lillian Peluso as Administrator for $519,000 arising from the death of her husband in an explosion and from a judgment in plaintiff National Engineering Company’s (National) favor for $1,727 in punitive damages and for *844 $151,306.91 in property damage occasioned at National’s laboratory, the site of the explosion.

Defendants contend the trial court erred when it (1) prevented their theory of a natural gas explosion from being presented to the jury; (2) prevented cross- examination of Peluso’s expert economist regarding reductions in deceased’s future earnings by income taxes; and (3) permitted National to establish its property damage on a cost of repair theory without a proper foundation. National contends this appeal must be dismissed because defendants have abandoned the original relief requested in their notice of appeal. Plaintiff Peluso’s complaint alleged that defendants’ negligence on December 13, 1968, was the proximate cause of the death of her husband, Thomas, when a mixing machine filled with a chemical mixture of defendants, known as LOD939, exploded at National’s laboratory where Thomas worked as a chemist. She prayed for damages for his wrongful death and for damages for the pain and suffering which he experienced during the period between the explosion on December 13, 1968 and his death on December 14, 1968. National’s four count complaint in a separate cause was based upon theories of negligence, strict liability, wilful and wanton misconduct, and the breach of an express warranty. It prayed for both property and punitive damages arising from the explosion in its laboratory and plant at 1716 West Hubbard Street. Both cases were consolidated and the following pertinent evidence was adduced at trial. For plaintiffs : Henry W. Dienst, a vice-president of National in 1968


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National designed, engineered and sold industrial mixing equipment. National’s customers could test its equipment at its performance laboratory to see if it would meet their needs. Although National made mixers for use with pyrotechnic materials and for use with explosive materials, it never mixed explosives in its Hubbard Street laboratory. Standard mixers were made of carbon steel, but mixers for explosives were made of stainless steel in a streamlined design and were equipped with explosion proof motors. National’s customers would select the type of mixer to be used for the test. **393 ***155 Robert J. Donat, an assistant chief engineer for National He designed the mixer used in the laboratory on December 13, 1968. The mixer was not designed for mixing explosives. There was an exhaust fan above the mixer and a standard open-type motor beneath the mixer. After the explosion, a handle on the machine was missing and a chute under the bottom discharge door was bent. *845 Martin Dale Plejdrup, west coast sales representative for National Defendant Joseph Philipson inquired about mixing 30 pounds dry weight of an inert thermite material. Philipson told him that an explosion proof motor and starter, an air operated discharge door, and other standard features for pyrotechnic mixing were not required. Philipson never warned of any hazard that might result if the material was not kept damp. When used to mix pyrotechnics, a mixer would generally be placed in a remote area in a building with a blow-out roof. James Stewart, assistant sales manager for

National National was a specialist in mixers, but not in their customer’s products. National would request its customers to send a representative to direct the mixing of their products. National would not mix explosives. Philipson wanted to mix molybdenum trioxide and aluminum powder. Philipson said the LOD939 mixture was a pyrotechnic which would ignite and glow at a high temperature, but which would not explode. He would not have mixed the LOD939 if he knew it could have exploded. Philipson, Thomas Peluso, and he mixed two batches of LOD939 on December 12, 1968. Philipson decided upon the volume and percentages of the various ingredients that would be used. They decided to leave the second batch in the mixer overnight. Philipson did not discuss the safety of leaving the mixture, but did suggest the wet mixture might pick up moisture from the air. He saw Thomas Peluso in the laboratory the next morning before he left to answer the telephone. At approximately 8:55 a. m. a sharp cracking explosion blew the telephone receiver out of his hand. When he returned to the laboratory he found the mixer was charred and the discharge door was hanging. On cross-examination, he admitted that Bert Troy, a National employee, had told him that he could see no reason for not mixing this material in the laboratory. Although he had previously testified it was not unusual for National to conduct tests on this type of material, he had meant the mixing of inert substances. Defendant Joseph Philipson under section 60


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He was a consulting engineer hired by the Link Ordinance Division of Singer General Precision Corporation. He was attempting to streamline the production process of LOD939 which was a heat producing material used to light the primary explosive in bombs. He had observed LOD939 being produced at a Link plant in Sunnyvale, California. The plant was on an abandoned NIKE missile site in a remote area. He told James Stewart that LOD939 was not an explosive. He also told Martin Plejdrup that the material was inert and that explosion proof motors, remote drive operation and close tolerance machining would not be required. He assured Plejdrup there was no danger if the material was not kept damp. *846 Stewart told him the LOD939 should not be entirely dry. The burning rate of LOD939 depends upon the particle size of the material with the smaller particles burning faster. The second batch of LOD939 which was mixed on December 12, 1968, and was stored overnight had been heated to remove any water. When the mixer was turned off the LOD939 appeared to be dry and the particles were smaller than the first batch and smaller than desired for production. He warned Stewart, outside of Thomas Peluso’s presence, not to smoke in the laboratory. He never told Peluso to wear conductive

***156 **394 shoes or asbestos work clothes. Although Link had used conductive bags because they prevented sparking from static electricity, he did not tell anyone at National that their nonconductive, polyethylene bags should not be used to store the mixture. He did not advise Peluso to use a remote motor on the mixer. The main force of the explosion occurred near the mixer. After the explosion the mixer was charred and no LOD939 was present. He admitted it was probable the liberation of energy from the LOD939 killed

Peluso and that his burns came from the LOD939. C. E. Bert Troy, Technical Director for National He did not recall discussing the mixture with anyone prior to December 12, 1968. LOD939 was a thermite which would release a great amount of heat, but would not explode. A temperature in excess of 900o F or 1100o F would be necessary to ignite a thermite. The presence of water would retard a thermite reaction. The mixer was suitable and safe for mixing LOD939. There were no gas lines into the laboratory and there were no gas leaks in National’s gas system. The center of the explosion occurred below or at the discharge point of the mixer. He believed the thermite ignited and an explosion followed. Any mixture could be explosive under the right circumstances. Robert E. Parr He was an investigator of explosives for People’s Gas, Light and Coke Company. A chemical explosion involving a metallic or aluminum powder occurred in the laboratory. The explosion did not occur inside the mixer, but rather outside and all around it. No other fuel, either natural gas or oil, was involved in the explosion. There were two impact fractures to a gas line caused when the west wall of the laboratory was driven into the pipe by the explosion. The fractured gas pipe was an effect of the explosion and not a cause of it. Officer Frank R. Kasky, a Chicago police department officer He was a member of the Bomb and Arson Squad for 14 years. His investigation showed that the explosion originated around the mixer. He observed a silvery material


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throughout the room. In his opinion, this aluminum powder mixture was the cause of this explosion. He admitted *847 that thermite materials would burn but not explode and that National’s technical director referred to the mixture as being a thermite. Edward J. Ryan, a serviceman for the gas company He had no experience as an explosion or fire investigator. A three-quarter inch gas pipe was broken off at a fitting near a gas meter. Paul Martin Kierkegaard, chief chemist for FMC Corporation LOD939 is an explodable thermite. The Bureau of Explosives classifies LOD939 as a Class B explosive. The Bureau of Mines and the National Fire Code rate aluminum as a very explosive material in dust form. The drier and finer the LOD939 became, the more likely it would have been to ignite and to burn. Whenever he conducted tests on LOD939, he had used a large room in a separate part of the facility and had employees wear protective goggles, conductive shoes and a flame resistant shop coat. In his opinion, aluminum dust caused an explosion outside the mixer. Possible sources of ignition for the dust explosion included switches on the motors, friction from the mixer’s doors or from tools used to scrape the mixer, static electricity from a lab technician’s body, and charges found in polyethylene bags. During cross-examination he admitted it took a temperature of 900o F to 1000o F to ignite the LOD939 and that a cement mixer with a non-explosion proof motor was being used to mix LOD939 at Link’s California

facility. **395 ***157 After being asked to assume several facts including the fact that after the explosion two broken gas pipes were found, the following colloquy occurred:

“Q. Now, with those basic assumptions in mind, let me ask you the following questions. If the natural gas accumulated in the ceiling or in the walls in this room A. Yes, sir. Q. And exploded? A. Yes, sir. Q. Would that be a sufficient amount of force to blow the cover off of the mixer?”

Plaintiff Peluso objected on the ground that there was no evidence that any natural gas accumulated or exploded. After a hearing on her objection, which occurred outside of the jury’s presence, the trial court sustained the objection and thereafter instructed the jury to delete any reference to the accumulation or explosion of natural gas from the question. Donald A. Jendro, a mechanic at National’s plant On December 13, 1968, at approximately 8:30 a. m. he saw Thomas Peluso, a laboratory technician for National, sitting at a counter in the laboratory about eight to ten feet from the mixer. At approximately 8:45

*848 a. m. he heard an explosion and returned to the laboratory. Peluso was lying on the floor in the southwest corner of the laboratory by the opposite wall from the mixer. He did not see any clothing or shoes on Peluso. Peluso was moaning. There were no unusual smells in the laboratory. Anthony Palermo He saw his friend Thomas Peluso at the hospital on December 13, 1968. Thomas was in great pain and his body looked like a


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burned steak although it was covered with salve. Thomas nodded his head when spoken to. Terry Jo Tasche, a registered nurse at the Cook County Hospital Burn Unit Eighty-nine percent of Thomas Peluso’s body was burned. Eighty percent of these burns were full thickness burns which went through all layers of his skin. An escharotomy, in which the skin is cut through all its layers so that the blood could flow, was performed on Thomas’ chest, arms and lower legs. A tracheotomy was performed to allow breathing. Thomas was conscious and in pain. He was given morphine on six occasions. He died on December 14, 1968 at 8:20 p. m. from toxemia caused by the burns. Plaintiff Lillian Peluso She and Thomas Peluso were married two weeks before he died. He was conscious when she saw him at Cook County Hospital. Robert E. Miller, an economist Based upon Thomas Peluso’s job his actual earnings at the time of his death and his work life expectancy, Thomas had a demonstrated earning capacity of $393,000. The demonstrated earning capacity of members of his cohort group with the same education was.$483,100 and that of members of his cohort group who were technicians was $611,405. During cross-examination, defense counsel inquired whether these figures represented only gross income. The witness replied in the affirmative. Defense counsel then began to ask “and that does not take “ whereupon plaintiff objected. Plaintiff requested that the effect of income taxes on these earnings not be mentioned citing Hall v.

Northwestern Ry. Co. (1955), 5 Ill.2d 135, 125 N.E.2d 77. The trial court sustained plaintiff’s objection. There- upon defense counsel withdrew his last question. Thomas Curtin, a vice-president of National He was in charge of the work done to repair and to restore the laboratory and building at 1716 West Hubbard. He identified and explained several photographic exhibits which showed the building and laboratory before and after the explosion. **396 ***158 He also identified several paid bills and invoices, totalling $172,321, which related to work done in repairing the building. Defendants *849 objected to the introduction of these exhibits in evidence on the ground that no theory of recovery had been presented. National represented that the figures were offered on a cost of repair theory and not a difference in value theory, and offered that Curtin would testify as to what work was required as a result of the explosion and what work had been done. The trial court admitted the bills and invoices in evidence. During cross-examination Curtin admitted the improvements resulted in a better building, but later stated these improvements referred only to changes required by the building code. For defendants: John Kauffman, chief engineer and a vice-president of National in 1968 Although he admitted he did not know the cause of the explosion, in his opinion a thermite reaction occurred based upon the fire evidence found in the laboratory. A dust explosion did not occur. The mixer was in the open or discharge position after the explosion.


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Dennis M. Michaelson, a consultant in fires and explosions He investigated this occurrence for National. The explosion originated beneath the chute or spout of the mixer. He found an aluminum oxide powder covering most of the laboratory. In his opinion, an aluminum dust explosion occurred which could have been avoided if proper safety precautions had been followed. He also found a hole in the ceiling which indicated the presence of a flammable, lighter than air, gas. There was nothing in his report to National, nor had he ever considered, the explosion to be caused by natural gas from the gas company. Although he had conducted tests with these chemicals, he was never able to produce an explosion. He later admitted that he had never tested LOD939 in a suspended state. Defendant Joseph Philipson, on his own behalf In his opinion a natural gas explosion occurred which ignited the LOD939 and spread the aluminum oxide throughout the laboratory. His opinion was based upon the break in the gas pipe in the room next to the laboratory. He did not know how much gas, if any, was leaking from the pipe. He first became aware a gas line was broken in the room next to the laboratory during the testimony of Robert Parr. The LOD939 burned, but it did not explode. He admitted the LOD939, not the natural gas, burned Thomas Peluso. During cross-examination, he admitted that neither his original 12 page report nor his subsequent condensed report indicated a gas explosion. He did not mention a gas

explosion in a statement given to defendants’ counsel before he was made a party to this cause. He also admitted previously stating under oath at a deposition given before he was made a party to this cause that he did not know what caused the explosion. After *850 he was made a party, he also testified at a deposition that he did not know the cause of the explosion. He admitted that recognized authorities in the field of pyrotechnics recommended storing aluminum dust separate from oxidizing materials, keeping the working area free from dust, using explosion proof motors, using hoods to collect particles near mixers, grounding all electrical equipment, wearing cuffless trousers and aprons without pockets, and using soft brushes for cleaning the equipment. For plaintiffs on rebuttal: Arthur A. Krawetz, a chemist who investigated this occurrence in February, 1969 In his opinion, a dust explosion of the LOD939 occurred in front of and below the mixer. An alternative cause of the explosion was the aluminum dust. The absence of burning in and about the building indicated

***159 **397 that a natural gas explosion did not occur. During plaintiff Peluso’s closing argument on rebuttal, the trial court, over defendants’ objections allowed plaintiff’s counsel to argue the following.

“I was accused of being a smart lawyer, remember, a half-hour ago, a clever lawyer. Well, if I am so smart and I am so clever wouldn’t I sue the gas company if I believed that that is what caused this guy’s death? * * * Wouldn’t somebody have sued the gas company if they thought and let them fight it out amongst themselves.”


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Following the entry of the trial court’s judgment, defendants filed a post- trial motion which requested that the judgment be vacated and set aside, and that the trial court either enter judgment notwithstanding the verdict in defendants’ favor or grant defendants a new trial. The trial court denied defendants’ post-trial motions. In their Notice of Appeal defendants stated that they:

“ * * * hereby appeal from the Judgment entered herein on November 18, 1974 and from the Order denying defendants’ Post Trial Motion entered on February 28, 1975. The Defendants-Appellants request the Appellate Court of Illinois to reverse the Judgment of the Trial Court and to enter judgment in favor of defendants- appellants in the Appellate Court.”

OPINION [1][2][3] At the outset, National contends this appeal must be dismissed because defendants have abandoned the relief requested in their notice of appeal, i. e., a reversal of the trial court’s judgment and the entry of a judgment for defendants, by now seeking a reversal and remandment for a new trial on all or part of the issues in their original brief in this court. *851 Supreme Court Rule 303(c)(2) requires that a notice of appeal specify the judgment or part thereof appealed from and the relief sought. (Ill.Rev.Stat.1973, ch. 110A, par. 303(c) (2).) The notice of appeal vests jurisdiction in the Appellate Court and informs the party in whose favor a judgment has been rendered that the appellant will seek a review of the case. (Wells v. Kern (1975), 25 Ill.App.3d 93, 322 N.E.2d 496; Department of Transportation v. Galley (1973), 12 Ill.App.3d 1072, 299 N.E.2d 810.) In National Bank of Republic v.

Kaspar American State Bank (1938), 369 Ill. 34, 15 N.E.2d 721, our Supreme Court held that under former Rule 33 (now Rule 303) the failure to include a prayer for relief in the notice of appeal is merely an error in form and not an error of substance and that the Appellate Court does not lose its jurisdiction by technical errors of this sort where an appellee is not otherwise prejudiced. Here, defendants’ notice clearly apprised National that defendants were appealing from the trial court’s judgment and from the denial of their post-trial motion which included a prayer for a new trial. Moreover, unlike the notice in National Bank of Republic, defendants’ notice here included a request for relief, albeit not the relief requested in their original brief in this court. Unlike the appellants in McCottrell v. Benson (1961), 32 Ill.App.2d 367, 178 N.E.2d 144, and City of Chicago v. Baran (1972), 6 Ill.App.3d 29, 284 N.E.2d 320, cited by National, defendants here have neither changed their original allegations contained in the notice nor specifically prayed that the cause not be remanded for a new trial. We cannot find that National has been prejudiced by defendants’ notice of appeal and, therefore, we reject National’s contention that this appeal must be dismissed. Defendants first contend the trial court erred when it prevented their theory of a natural gas explosion from being presented to the jury. They argue that the evidence on causation was close and, consequently, the trial court erred when it limited the cross-examination of one of plaintiffs’ expert witnesses, and when it allowed Peluso’s counsel to argue that the absence of a suit against the gas company foreclosed the possibility of a natural gas explosion. To the contrary, we believe the evidence clearly supported plaintiffs’ theory of a

**398 ***160 chemical explosion as a


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proximate cause of the injuries. Six witnesses testified that either the LOD939 had burned or had exploded, a component of the LOD939, the aluminum dust, had exploded, or a hydrogen gas by- product of the LOD939 had exploded. Among the witnesses were disinterested third parties and one of defendants’ own witnesses. In addition, defendant Philipson admitted that regardless of the cause of the explosion it was the LOD939 which burned Thomas Peluso. Defendants were not precluded from presenting their natural gas *852 explosion theory to the jury. Philipson testified on direct examination that a natural gas explosion had occurred. We believe, however, that his testimony was impeached so that the jury could not help but give it little probative value. On five separate occasions, both before and after he was made a party to this cause, Philipson had stated he did not know what caused the explosion. Moreover, his opinion was based solely upon the testimony of Robert Parr, an investigator, who testified the gas line in the next room was broken by the force of the explosion and thus was an effect, not a cause, of the explosion. Finally, Philipson had no idea how much gas, if any, was leaking from the ruptured pipe. Consequently, although we have reviewed defendants’ arguments concerning closing argument and the cross-examination of one expert witness, we have not done so from the perspective that the causation issue was a close question of fact. [4][5] Although we believe Peluso’s counsel’s argument that Lillian Peluso would have sued the gas company if she believed it caused Thomas Peluso’s death was improper and that the trial court should have sustained defendants’ objection, this error is not reversible by itself. Arguments

concerning why a party was not sued, though improper, do not constitute reversible error unless a defendant can show it was prejudiced thereby and denied a fair trial. (Trippel v. Lott (1974), 19 Ill.App.3d 936, 312 N.E.2d 369.) Here, the isolated remarks must be examined in light of the clear evidence on causation and Philipson’s injection of a gas explosion theory. After reviewing the record in this regard, we reject defendants’ contention that they were denied a fair trial by Peluso’s counsel’s argument. Defendants also argue that it was error to refuse to allow one of plaintiff’s experts, Paul Kierkegaard, to answer a hypothetical on cross-examination concerning the possibility of a gas explosion. The hypothetical asked the witness to assume that natural gas had accumulated and then exploded. The record clearly shows that no evidence of a natural gas accumulation or explosion had been adduced before the hypothetical was posed. Defendants’ reliance upon the testimony of Robert Parr is misplaced. Parr testified that natural gas was not involved, and that the fracture of the gas line in another room was an effect and not a cause of the explosion. [6][7] Nonetheless, we note that it is within the sound discretion of the trial court to allow a hypothetical question although the supporting evidence has not already been adduced if the interrogating counsel gives assurance it will be produced later. (Gibson v. Healy Brothers & Co. (1969), 109 Ill.App.2d 342, 248 N.E.2d 771.) A careful review of the record has disclosed that defense counsel did mention in chambers that a defense witness, Dennis Michaelson, would testify to the presence of *853 natural gas. However, we note that Michaelson subsequently testified that the explosion was caused by aluminum dust and that he had never considered natural gas as the explosion’s cause. Consequently, even if we


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consider defense counsel’s proffer as to Michaelson’s testimony to be an assurance of subsequent testimony that gas had accumulated and exploded, Michaelson’s actual testimony shows that defendants were not prejudiced by the trial court’s refusal to allow the hypothetical. In light of these facts, we cannot say the trial court abused its discretionary powers in refusing to allow a hypothetical question which had the potential to mislead the jury. **399 ***161 Defendants next contend the trial court erred when it prevented cross-examination of Peluso’s expert witness, economist Robert Miller, regarding reductions in deceased’s future earnings by income taxes. Defendants do not argue that they should have been allowed to introduce the effect of income taxes on the jury’s award. (See, Raines v. New York Central R. R. Co. (1972), 51 Ill.2d 428, 283 N.E.2d 230, cert. denied, 409 U.S. 983, 93 S.Ct. 322, 34 L.Ed.2d 247.) Rather, defendants argue that the jury should have been allowed to consider income taxes as they would have diminished deceased’s projected earnings and, thus, Lillian Peluso’s damages for her pecuniary loss as allowed under the Wrongful Death Statute. We do not believe that this issue is strictly controlled by two decisions which contain discussions of income tax in analogous situations, but under a different statute, the Federal Employers’ Liability Act. (45 U.S.C., sec. 51, et seq.) In Hall v. Chicago & Northwestern Ry. Co. (1955), 5 Ill.2d 135, 125 N.E.2d 77, our Supreme Court held it was error for defense counsel to argue that whatever amount the jury might award would not be subject to federal income taxation. In dicta, the court also stated the trial court’s ruling that evidence of gross earnings before taxes was proper on the issue of earning capacity appeared to be in accord with the weight of authority. Similarly, in Wawryszyn v. Illinois Central

R. R. Co. (1956), 10 Ill.App.2d 394, 135 N.E.2d 154, this court held that although it was error to bring deductions of income tax to the jury’s attention, the error was offset by a similar mistake in computing deceased’s personal expenses and thus no prejudice had ultimately accrued to defendant. [8] We must reject defendants’ contention for two reasons. First, defendants have failed to preserve this issue for appeal. The record shows that during the in-chambers discussion over defendants’ question, “and that does not take,” defense counsel represented that he intended to show Miller’s testimony related only to gross earnings devoid of references to taxes or expenses. Thereafter, defense counsel asked a series of questions, unobjected to by plaintiffs, which established that Miller was referring to gross earnings only. In Harris v. Algonquin Ready Mix, Inc. (1973), 13 Ill.App.3d 559, 300 N.E.2d 824, affirmed, 59 Ill.2d 445, 322 *854 N.E.2d 58, we held that no appealable issue remained when a defendant dropped its line of questioning after an in-chambers argument and did not make an offer of proof following the trial court’s adverse ruling. At no time did the defendants in this case proffer what Miller’s testimony would have been. Defendants did not offer any competent witness during the presentation of their own case who could testify as to the effect of income taxes during deceased’s projected 42.5 year work- life expectancy. Indeed, defendants did not even offer evidence on the effect of taxes upon deceased’s projected earnings up until trial. We note in passing that even under those authorities which support defendants’ position, Cox v. Northwest Airlines, Inc. (7th Cir. 1967), 379 F.2d 893; McWeeney v. New York, N. H. & Hart. R. Co. (2d Cir. 1960), 282 F.2d 34, cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93, and Petition of Marina Mercante Nicaraguense,


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S.A. (2d Cir. 1966), 364 F.2d 118, this evidence would be inadmissible because it did not have a “significant impact” on the computation of damages while deceased’s salary was in the lower ranges of the middle income scale. [9] Defendants argue that they had no duty to make a formal offer of proof. An offer of proof is necessary in order to apprise the court of the substance of the testimony sought to be admitted. (Del Rosario v. Del Rosario (1970), 133 Ill.App.2d 8, 270 N.E.2d 160; Schusler v. Fletcher (1966), 74 Ill.App.2d 249, 219 N.E.2d 588.) We believe the salutary purpose of an offer of proof is especially apparent in this case where one of the major arguments against allowing evidence of this nature is that the projection of future income taxes is too uncertain due to vagaries in both the tax rates and the number of exemptions, exclusions, credits and deductions which a deceased might be entitled to receive during his lifetime, and that it would allow juries

**400 ***162 to engage in irrational speculations when computing pecuniary losses. (See, Jennings v. United States (D.Md.1959), 178 F.Supp. 516; vacated and remanded on other grounds, 4th Cir. , 291 F.2d 880, original judgment affirmed on remand, 207 F.Supp. 143 and 318 F.2d 718; Bergfeld v. New York, Chicago & St. Louis R.R. (1956), 103 Ohio App. 87, 144 N.E.2d 483.) Thus, while we recognize the importance of this issue, we believe it would be improper to adopt a rule of law for this jurisdiction based solely upon a partial question asked in cross-examination and absent any competent evidence on the application of taxes to the particular facts of this case. [10] Second, even if we were to assume that the trial court’s ruling was erroneous defendants have not shown that they were prejudiced by the ruling. A court of review

can reverse a trial court’s judgment only when an alleged error is shown to have been prejudicial to an appellant’s right to a fair trial. (McCormick v. Kopmann (1959), 23 Ill.App.2d 189, 161 N.E.2d *855 720; Wawryszyn v. Illinois Central R.R. Co. (1956), 10 Ill.App.2d 394, 135 N.E.2d 154.) In the instant case, Lillian Peluso pleaded, and the jury considered, two separate demands for recovery one, for her pecuniary loss under the Wrongful Death Statute and a second for Thomas Peluso’s pain and suffering under the Survival Statute. The excluded testimony would have been relevant only to Lillian Peluso’s pecuniary loss under the Wrongful Death Statute. The jury returned a single verdict which was well within the amount requested for Thomas Peluso’s pain and suffering alone. Defendants did not submit special verdict forms to the jury which would have apportioned damages into the pecuniary loss and pain and suffering categories although they were authorized to so move by section 68(3) of the Civil Practice Act. (Ill.Rev.Stat.1975, ch. 110, par. 68(3); cf., Edenburn v. Riggins (1973), 13 Ill.App.3d 830, 301 N.E.2d 132; Magnani v. Trogi (1966), 70 Ill.App.2d 216, 218 N.E.2d 21; Lawless, Computation of Future Damages; A view from the Bench, 54 Georgetown L.J. 1131 (1966).) Consequently, we would now have to engage in speculation and conjecture to determine whether the excluded testimony had any prejudicial effect on the jury’s verdict because damages could have been based solely upon Thomas’s pain and suffering during the 35 hours he survived while his body was fatally burned. Defendants finally contend the trial court erred when it permitted National to establish its property damage on a cost of repair theory without a proper foundation. They argue that the improvements which resulted from repairs done to comply with existing building codes are not compensable citing


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Stenger v. Hope Natural Gas Co. (1954), 139 W.Va. 549, 80 S.E.2d 889. In Stenger, the Supreme Court of Appeals of West Virginia held the evidence was insufficient to sustain a finding that defendant gas company was negligent or that its negligence, if any, was the proximate cause of an explosion at plaintiff’s dwelling. For the benefit of the trial court upon remandment, that court also stated that where the measure of damages is the difference in the value before the injury and the value after the injury, the admission of evidence of repairs required by local ordinances for the purpose of establishing the amount of damages recoverable constituted prejudicial error. [11] Stenger is inapposite to the case at bar. In Illinois, damages are generally measured by the cost of repair and not by the diminution in value. (Kroch’s & Brentano’s, Inc. v. Barber-Colman Co. (1973), 16 Ill.App.3d 412, 306 N.E.2d 522; Fitzsimons & Connell Co. v. Braun (1902), 199 Ill. 390, 65 N.E. 249.) Unlike the evidence in Stenger, National’s evidence here relates directly to the controlling measure of damages for this jurisdiction. National produced evidence showing the condition of the building before and after the explosion and paid bills and invoices for repairs to the building, laboratory equipment, and other personalty which *856 repairs were required by damage caused by the explosion. Consequently, we will not be persuaded by the court’s reasoning in Stenger. **401 ***163 [12] We hold that the cost of repair can include the expense necessary to conform those repairs to existing building codes. To hold otherwise would encourage shortcuts in restoration and thus undermine the salutary purpose of local safety and building codes, and also would defeat the recovery of costs which are incident and necessary to effect the repairs. Moreover, in

this case, National evidenced $172,321 in paid repair bills, but received only $151,306.91 in property damages. There is no evidence in the record to show that the jury’s lesser award over-compensated National for its losses based upon expenses required by the building code. Because the evidence offered related to the correct measure of damages, we cannot say the trial court erred and we reject defendants’ final contention. For the reasons stated, we affirm the judgment of the circuit court. Affirmed. MEJDA, J., concurs. SULLIVAN, P. J., specially concurring. SULLIVAN, Presiding Judge, specially concurring: Although I agree in principle with the result reached by the majority here, I am not in accord with certain aspects of its reasoning in rejecting defendants’ contention that they should have been allowed to examine plaintiff’s economist to show that his computations did not include deductions for income taxes and personal expenses. During cross-examination, after the economist had answered that his estimates of future loss of earnings were gross figures, defendants’ attorney started to ask him another question, as follows: “Q. And that does not take .” At this point, plaintiff’s counsel asked for and was granted a hearing in chambers, where he stated an objection to any questions concerning income taxes. He argued that Hall v. Chicago and Northwestern Railway Co. (1955), 5 Ill.2d


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135, 125 N.E.2d 77, prohibited any such references, and defendants’ counsel then stated he would demonstrate, through the witness, that the income figures to which he had testified “are simply gross earnings” and that they were “totally devoid of any references to taxes or expenses.” At that point, the court sustained the objection and, thereafter, defense counsel made no further reference to income taxes either during the trial or in his argument to the jury. The measure of damages under the Wrongful Death Act is the *857 pecuniary loss to the beneficiaries occasioned by the death. (Flynn v. Vancil (1968), 41 Ill.2d 236, 242 N.E.2d 237. See also, Scully v. Otis Elevator Company (1971), 2 Ill.App.3d 185, 275 N.E.2d 905.) Pecuniary loss has traditionally been held to consist of the value of the sum of monetary contributions and personal services the deceased would have provided. (Scully; O’Fallon Coal and Mining v. Laquet (1902), 198 Ill. 125, 64 N.E. 767.) In this regard, we note that the Pattern Jury Instruction for damages in death actions, I.P.I. 36.01, lists eight factors to be considered by juries in determining pecuniary loss. Among them are the amounts decedent customarily contributed in the past to his next of kin and what he spent for customary personal expenses. There is no question that decedent here, prior to his death, could not have made contributions of that which would have been paid in taxes or for his personal expenses, and it appears to me that pecuniary loss must necessarily be a net amount determined after deductions for those items. Hall, relied upon by plaintiff, is not controlling of the issue here. It held in a personal injury action that a jury should not be informed that its damage award would not be subject to income tax and, while the application of Hall prohibits informing a jury in either a death or a personal injury

action that the amount of its award of damages would not be taxable, it does not hold that defendant in a death action may not develop the fact that pecuniary**402

***164 loss was a net amount to be determined after deductions for taxes and personal expenses. No Illinois court has decided this question,

but it has been passed upon in federal cases. In Burlington Northern, Inc. v. Boxberger, 529 F.2d 284 (9th Cir. 1975), an FELA damage award of $335,000 was set aside because evidence of the amount of personal income tax that would have been paid had decedent lived was refused. The court stated: “(W)e believe it altogether right and proper that in cases wherein the annual gross income is such that future taxes would have a substantial effect, evidence of the decedent’s past and future tax liability should be admitted if a reasonably fair and accurate estimate of his lost future income is to be assured.” (529 F.2d at 291.)

The Boxberger court also said that the exclusion of any evidence of future income taxes seriously prejudiced defendants, because the award substantially exceeded what the beneficiaries would have received had decedent lived “due to overcompensation in the form of pretax dollars that the survivors would never have received had the accident not occurred.” (529 F.2d at 295.) Additionally, the Boxberger court rejected an argument that to permit a deduction for tax liability would involve too much speculation and uncertainty, stating:

“(T)oday’s sophisticated jurors surely have had some personal *858 experience in determining their own tax liability, and in today’s tax- conscious society we are confident that our juries and judges, with the aid of such competent expert testimony as may be received, are equal to the task and the responsibility.” (529 F.2d at 293.)


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In Cox v. Northwest Airlines, Inc., 379 F.2d 893 (7th Cir. 1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 which involved an action under the Death on the High Seas Act for the death of a passenger in an airplane crash, the trial court, in a bench trial, computed pecuniary loss to the next of kin on the basis of decedent’s probable future earnings, without any deduction for income taxes on those earnings. The court of appeals stated:

“The deceased’s beneficiaries could not logically and reasonably have expected to receive the money he would have paid in such taxes had he lived. Only the net income would have been available for their support. And there can be no pecuniary loss of income which would not have been available for contribution.” (379 F.2d at 896.)

Thus, it is my thought that defendants should have been allowed to cross- examine the economist to develop the fact that his computations included no deductions for income taxes and personal expenses. I disagree also with the majority’s holding that defendants failed to preserve this issue for appeal because no offer of proof was made by defendants after the trial court’s adverse ruling. An offer of proof is unnecessary when the trial court understands the objection and character of evidence but will not admit the evidence (Schusler v. Fletcher (1966), 74 Ill.App.2d 249, 219 N.E.2d 588), or where the question and the circumstances surrounding it are sufficient to indicate the problem and the admissibility of the evidence (Creighton v. Elgin (1944), 387 Ill. 592, 56 N.E.2d 825; Ryan v. McEvoy (1974), 20 Ill.App.3d 562, 315 N.E.2d 38; Mack v. Davis (1966), 76 Ill.App.2d 88, 221 N.E.2d 121). Here, the in chambers colloquy reveals the court and the parties were well aware of the

fact that defendants were seeking to show that the computations of the economist did not consider income taxes and personal expenses. Under such circumstances, an offer of proof to repeat what was already known was not required. Creighton; Schusler. It is my belief that Harris v. Algonquin Ready Mix, Inc., relied upon by the majority in its opinion and by plaintiff in its brief here, is not controlling on this question. In Harris, plaintiff was injured when a crane came in contact with overhead high tension wires and, when a witness was asked about a prior crane contact with wires, an objection

***165 **403 was sustained. In the ensuing discussion in chambers, no statement or offer of *859 proof was made as to whether the prior touching had occurred under conditions substantially similar to those in the second contact and, in the absence thereof, the court held that no appealable issue remained. In the instant case, however, the discussion in chambers disclosed to the court exactly what it was that defendant wanted to show. Finally, I express my disagreement with the holding of the majority that evidence of the effect of taxes on deceased’s projected earnings “would be inadmissible because it did not have a ‘significant impact’ on the computation of damages while deceased’s salary was in the lower range of the lower income scale.” While it is correct, as stated by the majority, that McWeeney and Cox support this concept, it is noted that in Cox, a death action, there was testimony as to projected future earnings of from $15,655 to $20,608 per year, and the court held that the impact of income tax involving such earnings had a significant and substantial effect in the computation of probable future contributions.


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In McWeeney, an injury action, plaintiff’s yearly income was $4,800 on which he would have paid $773 in income tax. The majority of the court upheld the refusal of an instruction that the jury, in determining future loss of earnings, should consider only plaintiff’s net income after deducting income taxes, because the amount of the tax would not have significant impact on the award of damages. The majority also stated, however, that there may be cases of large potential earnings where failure to consider the income tax factor would produce an improper result. In a dissenting opinion, Chief Judge Lumbard rejected the “significant impact” concept, stating:

“I submit that if the factor is relevant in any case it is relevant in every case. It can hardly be seriously argued that an item of $773 over McWeeney’s life expectancy of 29 years, or about $22,000 before discount, is so insubstantial that a trial court may choose to disregard it.” (282 F.2d at 43.)

In the instant case, the economist testified to future loss of earnings, reduced to present cash value, of $393,000 to $611,000. With a 37 year life work expectancy, this would indicate projected earnings of from $10,700 to $16,500 per year which, even in the light of the reasoning of either Mc- Weeney or Cox, would have significant impact on the computation of future contributions. For the reasons stated, it is my opinion that the trial court erred in not permitting defendants to develop the fact that the computations of plaintiff’s economist did not include income taxes and expenses. However, I agree with the majority that defendants have not shown this error to be prejudicial. Error is generally not reversible without a showing of prejudice (Tipsword v. Melrose (1973), 13 Ill.App.3d 1009, 301

*860 N.E.2d 614; Adamaitis v. Hesser

(1965), 56 Ill.App.2d 349, 206 N.E.2d 311), and to entitle a party to a reversal of a judgment, he must show that the error has, or presumably has, resulted in an injury to him. O’Fallon Coal and Mining Co.; Atz v. Goss (1974), 21 Ill.App.3d 878, 316 N.E.2d 29; Harrison v. Rapach (1971), 132 Ill.App.2d 915, 271 N.E.2d 399; 3 Ill.L. & Prac. Appeal and Error s 802 (1953). In the matter before us, not only has there been no showing of such injury but, as a matter of fact, defendants have made no assertion that they were prejudiced. They argue only that the court committed plain error, but they cite no authorities in support of this position. From our examination of the record, we do not believe that the error was prejudicial to the extent that reversal is required. Initially, we note that the refusal to allow defendants to show that the economist did not consider deductions for income tax in his computations went only to the question of damages, so that if there was any prejudice therefrom, it would be reflected in the jury’s award. In this regard, it is significant that defendants have made no assertion that the award was excessive, and we cannot say that it was, in view of the fact that deceased was **404 ***166 only 25 years of age with a life expectancy of 45.6 years and a working life of 37 years and because there was unrebutted testimony of a demonstrated loss of earnings reduced to cash value of from $333,900 to $611,400. Even if testimony as to deductions of income tax had been permitted, there would remain a substantial amount of future loss of earnings which, when considered with the value of the services deceased would have rendered during his life expectancy and the value of his 35 hours of conscious pain and suffering resulting from burns over 89% Of his body of which 80% Went through all layers of skin, would indicate a substantial recovery was justified.


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-

In any event, the record discloses that defendants produced no witness who testified as to damages or contradicted plaintiff’s evidence in that regard. Neither do defendants contend that the error resulted in an excessive verdict; nor do defendants suggest that an inference of excessiveness should be drawn from the nature of the error. In view thereof, we believe that defendants have not satisfied the required showing of prejudice to entitle them to a reversal. I would modify the opinion to bring it into accord with the above comments; otherwise, I concur in affirming the judgment of the trial court. 365 N.E.2d 390, 47 Ill.App.3d 842, 8 Ill.Dec. 152 END OF DOCUMENT


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(Cite as: 36 P.3d 102) <KeyCite History> Colorado Court of Appeals, Div. IV. Mohammad A. RAZI, Plaintiff-Appellee, v. Robert A. SCHMITT, Defendant-Appellant. No. 00CA0031. March 1, 2001. As Modified on Denial of Rehearing May 31, 2001. Certiorari Granted Dec. 3, 2001. Building owner brought suit against arsonist for fire damage to his commercial office building. After bench trial, the Jefferson County District Court, Frank Plaut, J., awarded building owner compensatory and punitive damages. Arsonist appealed. The Court of Appeals, Ruland, J., held that: (1) proper measure of damages for commercial building was diminution of market value, and (2) owner was entitled to punitive damages although arsonist was previously punished in criminal court. Affirmed in part, reversed in part, and remanded. West Headnotes [1] Fires k7 175k7 Compensatory damages award to owner of commercial building that was not used for residential use or any special purpose and which was damaged by arsonist’s fire was limited to diminution in market value rather than restoration costs, which would have been allowed if special use or personal reasons existed, since the need to comply with current building codes in construction of a new building was not an acceptable personal reason or special use, and the

restoration costs were wholly unreasonable since the cost of a new building exceeded the market value of the pre-fire structure by as much as two and one- half times and the owner would have received a building with a longevity far greater than the former structure and the potential to generate income for a period far in excess of what was there before. [2] Stipulations k14(12) 363k14(12) Trial court could rely on parties’ stipulation as to damages, which was entered after the trial management order, as a basis for its damages award. Rules Civ.Proc., Rule 16(c)(3). [3] Fires k7 175k7 Punitive damages were appropriately awarded to owner of commercial building that was damaged by arsonist’s fire, despite fact that arsonist had been punished in the criminal justice system for the arson and the court had found that he would not again commit arson, where the trial court found that the arsonist’s conduct was willful and wanton by his purposefully setting fires without regard to the consequences to others, and purpose of the award was to set an example to others. [4] Damages k87(1) 115k87(1) Once it is determined that sufficient evidence exists to support an award for exemplary damages, the trial court is granted discretion to determine whether an award is appropriate. [5] Damages k91(1) 115k91(1)


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An award of exemplary damages is authorized for willful and wanton conduct, that is, conduct that the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. West’s C.R.S.A. § 13-21- 102(1)(b). [6] Damages k181 115k181 Evidence of arsonist’s income and net worth could not be used to determine whether exemplary damages were appropriate or in determining the amount of such damages in landlord’s action against arsonist for fire damage to landlord’s commercial building. West’s C.R.S.A. § 13-21-102(6). *103 Law Offices of Richard B. Gavend, P.C., Richard B. Gavend, David M. Bryans, Denver, CO, for Plaintiff-Appellee. Martin & Mehaffy, LLC, Joel C. Maguire, Boulder, CO, for Defendant- Appellant. Opinion by Judge RULAND. In this action to recover for damage to a commercial building resulting from a fire, defendant, Robert A. Schmitt, appeals from the judgment in favor of plaintiff, Mohammad A. Razi. We affirm in part, reverse in part, and remand the cause with directions. Defendant started a series of fires in a commercial office building owned by plaintiff. The two-story building was rented to defendant’s employer. The fires caused extensive damage. Only three of the four outside walls were salvageable. Following his trial on arson charges, defendant paid all amounts ordered by the trial court in that case as restitution. This payment included $244,757.37 to plaintiff

and plaintiff’s insurance company. Plaintiff then filed this action seeking additional compensatory and punitive damages. After a bench trial, the trial court awarded plaintiff additional compensatory damages in the sum of $390,530 for construction of a replacement building and for additional lost rent. In addition, the court awarded punitive damages in the sum of $250,000. Between the insurance proceeds that plaintiff had already been paid via court- ordered restitution and the trial court’s compensatory award, plaintiff would receive a total of $573,313 to replace the building. According to defendant’s expert, estimates of the building’s value just prior to the fire ranged from $85,000 using the income approach to valuation to $210,000 using the cost approach. Based upon comparable sales, the value was placed at $135,000. Plaintiff did not present evidence addressing diminution in market value, apparently as a result of the court’s ruling on a pretrial summary judgment motion. Instead, plaintiff relied upon evidence of the cost to replace the building as the applicable measure of damages. I. [1] Defendant contends that the trial court applied the incorrect measure of damages when it awarded compensatory damages based on the cost to reconstruct the *104 building rather than the diminution in market value of the existing building. We agree. In reaching its decision on compensatory damages, the trial court relied upon the opinion of our supreme court in Board of

County Commissioners v. Slovek, 723 P.2d


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1309 (Colo.1986). In Slovek, the plaintiff’s residential property was damaged by a discharge of water negligently caused by the county. The water damaged trees and fencing and caused the death of a fish population that was being maintained in a pond. The trial court awarded damages based upon diminution in market value. On appeal, our supreme court indicated that the usual award for injury to property is an amount equal to the diminution in market value together with damages for loss of use. However, the court held that an award of restoration costs was appropriate in that case. The court cited Restatement (Second) of Torts § 929 (1977) for the proposition that, in appropriate cases, the diminution in market value test may not be applicable. The court concluded:

If the damage is reparable, and the costs, although greater than original value, are not wholly unreasonable in relation to that value, and if the evidence demonstrates that payment of market value likely will not compensate the property owner for

some personal or other special reason, we conclude that the selection of the cost of restoration as the proper measure of damages would be within the limits of a trial court’s discretion.

723 P.2d at 1317 (emphasis supplied). See

Fowler Irrevocable Trust v. City of Boulder, 17 P.3d 797 (Colo.2001) (discussing Slovek in the context of a temporary taking); see

also Allyn v. Boe, 87 Wash.App. 722, 943 P.2d 364 (1997)(applying the rationale of Slovek in awarding damages for injury to timbered land retained for a retirement home). Here, the trial court determined that an award based upon the diminution in market value was inappropriate because such would not fairly compensate plaintiff for his loss. In support of its decision, the trial court found with record support that the office

building prior to the fire was substandard. The court also found with record support that a certificate of occupancy following reconstruction of the building to its pre-fire condition would not issue because of the failure of the structure to meet current building codes and to have facilities currently required, such as an elevator, a bathroom on the second floor, a sprinkler system, and other improvements. Colorado courts have not yet addressed the requirement for a “personal or other special reason” referenced in Slovek in the context of commercial structures. Certain other jurisdictions, however, have discussed this requirement. See Lexington Insurance Co.

v. Baltimore Gas & Electric Co., 979 F.Supp. 360, 365 (D.Md.1997)(the “personal reason” exception requires that “the property injured need not be an inhabited home ... [but] must be suitable and available for a homesite and be held by the owner for that purpose”); Trinity Church v.

John Hancock Mutual Life Insurance Co., 399 Mass. 43, 48- 49, 502 N.E.2d 532, 535-36 (1987)(“For certain categories of property, termed ‘special purpose property’ (such as the property of nonprofit, charitable, or religious organizations), there will not generally be an active market from which the diminution in market value may be determined.”); see also Myers v. Arnold, 83 Ill.App.3d 1, 38 Ill.Dec. 228, 403 N.E.2d 316 (1980) (suggesting that restoration cost rule does not apply to property held for business use). Here, plaintiff’s building was used strictly for commercial purposes. There was no testimony that he lived in the building or intended to inhabit the building in the future. And, there was no testimony that the property was used for special purposes. See

Trinity Church v. John Hancock Mutual Life

Insurance Co., supra; see also Heidorf v.

Town of Northumberland, 985 F.Supp. 250


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(N.D.N.Y.1997). Next, plaintiff has failed to cite any case from those jurisdictions that have followed the Restatement, and we find none, in which restoration cost was awarded for a commercial building in excess of the pre-injury market value of the structure where no acceptable personal or other special use was shown. See Lerman v. City

of Portland, 675 F.Supp. *105 11 (D.Me.1987)(cost restoration rule not applied for damages to apartments that had been in plaintiff’s family “for a long time” because this was not an appropriate “personal reason”), aff’d mem., 879 F.2d 852 (1st Cir. 1989); see also Lexington

Insurance Co. v. Baltimore Gas & Electric

Co., supra (personal aspiration for a particular commercial enterprise not deemed a “personal reason”). Finally, the evidence in this record indicates that the cost of a new building may exceed the market value of the pre-fire structure by as much as two and one-half times. In our view this margin would exceed what is reasonable. Conversely, plaintiff would receive a building with a longevity far in excess of that of the former structure, together with a potential to generate income for a period far in excess of what was there before. This award thus far exceeds the amount of plaintiff’s loss. See Board of

County Commissioners v. Slovek, supra. In sum, contrary to plaintiff’s contention, we conclude that the need to comply with

current building codes in constructing a new building is not a special reason as contemplated in Slovek for allowing an

award far in excess of the value of the

existing structure at the time of the fire. Hence, we hold that an award of compensatory damages here must be limited to diminution in market value.

Accordingly, the case must be remanded for a new trial on the damage issue so that the parties may focus their evidence on diminution in market value. See Judd

Construction Co. v. Bob Post, Inc., 516 P.2d 449 (Colo.App.1973)(not selected for official publication). Necessarily, the issue of punitive damages must be reconsidered as well. II. [2] Defendant contends that the trial court was in error when it awarded plaintiff $3,000 per month for lost rent. In support, defendant relies on the trial management order in which plaintiff stipulated to $2,000 per month. We disagree. In pertinent part, C.R.C.P. 16(c)(3) states that the trial management order controls the subsequent course of the trial. In this case, the order specifically stated that damages for uncompensated loss of rental would continue at the rate of $2,000 per month. However, during the presentation of evidence, a real estate appraiser testified that he had used an $8 per square foot rental figure in his calculation of fair market value of the building under the income capitalization approach. The trial court relied upon this testimony and awarded plaintiff damages for uncompensated loss of rental based on the $8 per square foot, or $4,000 per month. After defense counsel reminded the trial court that this rental rate was a full service rental rate and would require expenditures by the landlord, the court reduced the award to $3,000 per month based upon a new stipulation by the parties. No reference to the trial management order was made by either party. Because the parties entered into a second


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stipulation after the trial management order was entered, the court did not err in relying upon that stipulation as the basis for its award. See USI Properties East, Inc. v.

Simpson, 938 P.2d 168 (Colo.1997). III. Certain issues relative to punitive damages may arise again on retrial of this case, and thus we address them here. A. [3] Defendant notes that he has already been punished in the criminal justice system for the arson. As a result, he maintains that there are no legal grounds for an award of punitive damages, particularly in light of the court’s finding that defendant would not again commit arson. We disagree. [4][5] Once it is determined that sufficient evidence exists to support an award for exemplary damages, the trial court is granted discretion to determine whether an award is appropriate. Ballow v. PHICO

Insurance Co., 878 P.2d 672 (Colo.1994). An award is authorized for willful and wanton conduct, that is, conduct that the “actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, *106 or of the rights and safety of others, particularly the plaintiff.” Section 13-21- 102(1)(b), C.R.S.2000. In this case, the trial court found that defendant’s conduct was willful and wanton. Specifically, the court found that defendant purposefully set the fires and that his actions were taken without regard to the consequences or effect on others. And, the statute does not preclude an award against one who has also been charged with criminal misconduct.

Finally, because the award is authorized in order to serve as an example to others, a finding that defendant will not repeat the conduct does not preclude the court from exercising its discretion to award punitive damages. See Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980). B. [6] Lastly, defendant asserts that the trial court committed error when it considered, over defendant’s objection, evidence of defendant’s income and net worth in its determination of punitive damages. We agree. Section 13-21-102(6), C.R.S.2000, expressly prohibits consideration of a party’s net worth or income in deciding whether exemplary damages are appropriate or in determining the amount of such damages. Hence, upon remand this evidence may not be considered. That part of the judgment awarding plaintiff lost rental is affirmed. The remainder of the judgement is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion. DAVIDSON and KAPELKE, JJ., concur. 36 P.3d 102, 2001 DJCAR 1180 END OF DOCUMENT


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(Cite as: 236 Miss. 655, 111 So.2d 645)

<KeyCite History> Supreme Court of Mississippi.

Mrs. Amelia LONG

v. MAGNOLIA HOTEL CO. et al.

No. 41087.

May 4, 1959.

Action for negligently throwing bricks from a tornado damaged wall of defendant’s hotel building onto the plaintiff’s adjacent structure which was used as a restaurant. From a judgment of the Circuit Court, Warren County, R. B. Anderson, J., the plaintiff appealed. The Supreme Court, Per Curiam, held that the trial judge properly granted the defendant’s motion for new trial and that the last verdict for $5,000 was inadequate to compensate the plaintiff for the damages shown to have been sustained. Reversed and remanded on issue of damages only. Hall and Lee, JJ., dissented; Holmes, J., specially dissented. West Headnotes [1] Damages k111 115k111 In action for negligently throwing bricks from a tornado damaged wall of the defendant’s hotel onto the adjacent one-story structure of the plaintiff, where proof showed that plaintiff’s building was constructed in 1935 and could have been reconstructed for some $17,000, plaintiff was not entitled to recover as damages the value of a new brick building erected in conformity with the city’s building code at the cost of some $23,000 and defendants

would not be liable for any damage in excess of the amount that they actually damaged the plaintiff’s existing building as damages to the building itself. [2] Damages k103 115k103 In a tort action to recover damages done to property, the amount recoverable is the aggregate of the damages that resulted from the tort itself except in a proper case for punitive damages. [3] Damages k188(3) 115k188(3) In action for negligently throwing bricks from the tornado damaged wall of a hotel building onto plaintiff’s adjacent one-story structure, plaintiff was entitled to recover damages to her personalty to the extent that she was able to show by preponderance of evidence that it was actually damaged by the action of the defendants rather than by the tornado. [4] New Trial k155 275k155 Where an order undertook to sustain a motion for new trial in vacation after a term of court had intervened without another order having been entered on the minutes of the intervening term further continuing the motion for a new trial to be decided in vacation, motion for new trial was undisposed of and the trial judge had jurisdiction to render a further order at the January 1957 term disposing of the motion for new trial. [5] Appeal and Error k1175(1) 30k1175(1) [5] Damages k138 115k138


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In action for damages for negligently throwing bricks from the tornado damaged wall of a hotel building onto plaintiff’s adjacent structure, verdict for $5,000 was inadequate but a former verdict of $19,000 would not be reinstated in reversing judgment on later verdict where former verdict was so grossly excessive as to evince bias and prejudice and where it was contrary to the overwhelming weight of competent evidence and on account of an erroneous instruction. [6] Appeal and Error k933(1) 30k933(1) Rule that action of the trial court upon a motion for new trial is to be favorably considered on appeal and supported unless manifest error appears is particularly applicable where a new trial has been granted. [7] Appeal and Error k977(3) 30k977(3) Action of the trial court in setting aside a verdict and granting a new trial will not be disturbed unless there is a manifest abuse of discretion in so doing. Code 1942, § 1536. [8] New Trial k39(5) 275k39(5) (Formerly 275k39) In action for negligently throwing bricks from the tornado damaged wall of a hotel onto the adjacent structure of plaintiff, where instruction authorized the jury to pyramid damages and constituted manifest error, trial court properly granted defendants’ motion for new trial. [9] Damages k111 115k111

In action for negligently throwing bricks from the tornado damaged wall of a hotel building onto the plaintiff’s adjacent one-story frame structure which was used as a restaurant, measure of damages was not the loss of earnings in the operation of the restaurant but the loss of the value of the use of the premises and plaintiff could not recover both. [10] Damages k111 115k111 In action for negligently throwing bricks from a tornado damaged wall of a hotel building onto plaintiff’s adjacent restaurant, as to the loss of earnings or profits during the reasonable time required for the restoration of the building, the measure of damages would be the value of the loss of the use of the building and the equipment during such period of time. **647 *658 Brunini, Everett, Grantham & Quin, Vicksburg, for appellant. *659 Vollor & Thames, Teller, Biedenharn & Rogers, Vicksburg, for appellees. *661 PER CURIAM. Mrs. Amelia Long sued the Magnolia Hotel Company, owner of the Vicksburg Hotel at Vicksburg, Mississippi, and M. T. Reed Construction Company for negligently pushing or throwing brick and stone from the tornado damaged wall of the eleventh floor of the hotel building onto her adjacent one-story frame structure which was immediately to the east of the hotel building and was prior to the tornado used as a restaurant. The action of the defendants complained of occurred following the devastating tornado which struck the City of Vicksburg in the late afternoon of Saturday, December 5, 1953. The tornado had done considerable damage both to the hotel and to the plaintiff’s restaurant building. There


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were left hanging in a precarious and dangerous position, likely to fall at any time, the loose bricks around an eleventh floor window of the hotel, which were leaning toward the plaintiff’s one-story restaurant building on the east side of the hotel wall. The National Guard and the Adjustant General (Wilson) were on hand to protect the public safety and to do, or have done, whatever things were necessary in that behalf. It is undisputed in the record that General Wilson ordered that the president of the hotel company have the loose and leaning brick in question removed immediately. *662 Thereupon the latter contacted M. T. Reed, president of the M. T. Reed Construction Company, one of the outstanding construction firms in the state, and arranged with Mr. Reed to have the dangerous condition remedied. Naturally the hotel company would leave to the determination of this experienced construction firm the matter as to what method should be employed in remedying the dangerous situation hereinbefore referred to. Nevertheless, the M. T. Reed Construction Company was acting as the agent, at the request of, and on behalf of the hotel company in getting the loose brick down from the tornado damaged wall of the hotel pursuant to the orders of the military authorities. On the first trial of this suit for damages the trial judge gave a directed verdict for the defendants on the ground that they were acting in an emergency. We reversed the case on the first appeal, Long v. Magnolia Hotel Co., 227 Miss. 625, 86 So.2d 493, 496, saying, among other things: ‘In the case that we have here the hotel company and the contractor owed a duty to Mrs. Long to exercise reasonable care to avoid injury to Mrs. Long’s property when they undertook

to remove the overhanging brick; and the fact that Mrs. Long’s building had already been damaged by the tornado did not affect their liability for additional damage caused by their negligence. Whether they were guilty of negligence under the facts disclosed by the record was a question for the jury.’ Upon the trial on remand there was a verdict in favor of the plaintiff for the sum of $19,000. Thereupon, and in term time, the defendants made a motion for a new trial on the following grounds: ‘1st: That the verdict is excessive, evincing passion and prejudice on the part of the jury; 2nd: That the verdict is contrary to the overwhelming weight of the evidence; and 3rd: * * * The court erred in refusing **648 instructions requested by *663 defendants and granting instructions requested by plaintiff.’ This motion was filed on November 14, 1956, before the adjournment of the October term of court. Thereupon the trial judge entered an order taking the same under advisement, for decision to be rendered thereon in vacation. No action was taken by the trial judge on the motion during the period which intervened between the adjournment of the term of court at which the $19,000 judgment was rendered and the beginning of the next term of the court in December 1956. After the completion of the December 1956 term of the court, and on January 17, 1957, the trial judge addressed a letter to the respective firms of attorneys representing the parties, in which he stated, among other things, ‘I do not feel that the case should be tried again if a judgment fair to all can be reached. So, I am going to ask the plaintiff to remit part of the amount of the verdict, which I think is excessive. Mrs. Long stated, in effect, that her building was damaged in the amount of $7,000.00.’ In stating that Mrs. Long had testified in effect that her building was damaged in the


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amount of $7,000, the trial judge could have been referring to her testimony where she was asked:

‘Q. Now, Mrs. Long, as the owner of this property, please state to us what you consider the fair market value of the entire property, building and lot, immediately prior to the tornado? A. I would say forty-thousand dollars ($40,000.00). ‘Q. Now, as the owner of that property, please state what you consider to be the fair market value of the entire property, building and lot, after the tornado and before the repairs to the hotel were started. A. Thirty-seven thousand dollars ($37,000.00). ‘Q. Now, as the owner of that property, what did you consider to be the fair market value of the entire property, building and lot, after the brick had fallen on it as a result of the repairs *664 to the Hotel? A. About Thirty thousand dollars ($30,000.00).’

The trial judge further stated in his letter ‘I think Mr. Hennessey’s testimony adds up to practically the same.’ He was comparing the testimony of Mr. Hennessey with that of the plaintiff. Mr. Hennessey, a witness for the plaintiff, was a real estate expert and appraiser, and he had been asked the following questions and gave the following answers: ‘Q. Now, what in your opinion was the fair market value of the entire property, land and building, as of December 4, 1953, immediately prior to the tornado? A. $28,880.00.’ And he further testified ‘Q. What, in your opinion, was the fair market value of the entire property--land and building--when you inspected it in August 1954? A. Well, it would just simply be the value of the land, sir. Q. And what was that? A. Eighteen thousand dollars ($18,000.00).’ No one claimed that the land was damaged by either the tornado or the falling brick. The effect of his testimony is, therefore, that the damage caused to the

building both by the tornado and the falling brick was $10,880, and the undisputed testimony of M. T. Reed is that the tornado had caused some of the brick and debris to fall on the plaintiff’s building from the hotel wall before he went up to remove the leaning brick. [1][2] There was proof that the plaintiff’s building was constructed for her in 1935 and that she began her occupancy thereof during the year 1936. Since, according to the testimony of the plaintiff’s witness Raymond Birchett, her building could have been reconstructed as it was and of the same materials for $17,291.48, we do not think that she would have been entitled to the value of a new brick building erected in conformity with the city’s new building code at the cost of $23,669. One court decision from Wisconsin and one **649 from West Virginia which have been called to our attention hold the contrary. These two cases are not shown to be in *665 accord with the majority rule. In other words, we think that the defendants would not be liable to the plaintiff for any damage in excess of the amount that they actually damaged her then existing building by the throwing of the bricks and stone onto the roof thereof, as damages to the building

itself. It has always been the rule in this state that in a tort action to recover damages done to the property the amount recoverable is the aggregate of the damages that resulted from the tort itself, except in a proper case for punitive damages, and we do not think that this is such a case. In the case of D. L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770, 151 A.L.R. 631, the agent or employees of the D. L. Fair Lumber Company were not attempting to remedy a dangerous situation in an emergency nor acting under military orders when they cut the timber down on and destroyed the fence of Mr. Weems. We


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do not think that case is applicable or controlling here. [3] We are of the opinion that the plaintiff is entitled to recover as damages to her personal property for the various items listed in her bill of particulars to the extent that she is able to show by a preponderance of the evidence that they were actually damaged by the action of the defendants rather than by the tornado. [4] Under the decision in the case of Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801, we are of the opinion that an order which undertook to sustain the motion for a new trial in vacation after a term of the court had intervened without another order having been entered on the minutes of the intervening term further continuing the motion for a new trial to be decided in vacation, was a nullity, but a majority of the Judges are of the opinion that the effect of this action left the motion for a new trial undisposed of and that the trial judge had jurisdiction and authority to render a further order at the January 1957 term of the court disposing of the motion for a new trial, and that *666 he was justified in then sustaining the motion for a new trial on the grounds stated therein, as hereinbefore set forth in paragraph 5. [5] As to the verdict rendered by the jury after the motion for a new trial was sustained, and which verdict was for only $5,000, we are of the opinion that that verdict was inadequate as compensation to the plaintiff for the damages shown by the competent evidence. And under the cases of Gordon v. Lee, 208 Miss. 21, 43 So.2d 665, Swartzfager v. Southern Bell Tel. & Tel. Co., Miss., 110 So.2d 380, and the case of Green v. Hatcher, Miss., 105 So.2d 624 (not yet reported in Miss. Reports), we feel justified in reversing and remanding this case for a trial before another jury on the

question of damages alone. But we do not feel justified in reinstating the former verdict of $19,000, since we think that it is so grossly excessive as to evince bias, passion and prejudice on the part of the jury, and because we are of the opinion that the verdict is contrary to the overwhelming weight of the competent evidence, and on account of one erroneous instruction. Our cases furnish this Court a clear guide as to how we should consider the action of the trial court in granting a new trial. In Smith v. Walsh, 63 Miss. 584, the Court said: [6] ‘We are unwilling to disturb the judgment of the lower court in granting a new trial upon the first verdict. The rule

that the action of the trial court upon a

motion for a new trial is to be favorably

considered upon appeal, and supported

unless manifest error appears, and is

particularly applicable where the new trial

has been granted, since in such cases the rights of the parties are not finally settled, as they are where a new trial is refused, **650 but another trial is had. Dorr v. Watson, 28 Miss. 383.’ (Emphasis ours.) *667 [7] In Harper v. Mississippi State Highway Commission, 216 Miss. 321, 326, 62 So.2d 375, 377, the Court said:

‘Section 1536, Code of 1942, recognizes the right of a trial court to grant as many as two new trials if the facts and circumstances are such as to warrant the court in doing so. And the action of a trial

court in setting aside a verdict and

granting a new trial will not be disturbed

unless there is a manifest abuse of his

discretion in so doing. We are unable to say from the record on the first trial, which was made a part of the record on the second trial by a bill of exceptions, as provided for in Section 1537, Code of 1942, that the trial court was guilty of an abuse of his discretion in setting aside the


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verdict of the first jury in the amount of $17,000, and especially in view of the fact that he offered to let a verdict for as much as $10,000 stand, provided the remittitur of $7,000 was entered by the landowners. ‘The correctness of the action of the county court in setting aside the $17,000 verdict at the end of the first trial is not

dependent alone upon the question of

whether or not the verdict was grossly

excessive, but the court was also entitled to consider the basis on which the damages were evidently assessed on the first trial, and which fact was also assigned as error on the motion for a new trial in the county court.’ (Emphasis ours.)

[8][9] The question is, can we say that there was a manifest abuse of the trial court’s discretion in granting the new trial after the first verdict? The instructions granted the plaintiff on the measure of damages in the first trial wherein a jury verdict was entered, included the following: ‘Loss of earnings, and loss of use of her building for a reasonable time, if any, proximately caused by and directly attributable to any negligence acts of either or both defendants, if any.’ (Emphasis ours.) It is readily noted that this instruction authorized the plaintiff to recover for the loss of earnings and the loss of use of her building for a reasonable time. This *668 authorized the jury to pyramid damages. Actually, under the proof in this case the measure of damages in this regard is not the loss of earnings in the operation of the restaurant but the loss of the value of the use of the premises. In no event could she recover both, yet that is what this instruction authorized. It was a clear and manifest error. Not only are we unable to say that there was a manifest abuse of discretion by the trial judge in granting the new trial, but it appears to us that he was manifestly correct on this question and we cannot say that he was manifestly wrong in finding the

damages were excessive. [10] In the case of Gibson v. A. P. Lindsey, Distributor, Inc., Miss., 103 So.2d 345, only

the proper elements of damages had been

submitted to the jury, and we adhere to the rule so strongly and correctly enunciated in that case, under the facts thereof, but the majority of the Judges are of the opinion that the $19,000 judgment in the instant case should not be upheld or reinstated. As to the loss of earnings or profits during a reasonable time required for the restoration of the building, we are of the opinion that the measure of damages would be the value of the loss of the use of the building and equipment during such period of time. It would unduly prolong this opinion to undertake to recite or discuss all of the testimony in the long record here under consideration upon which we base the foregoing conclusions. Then, too, we have concluded that it would be proper to omit such recital and discussion since the case is to be retried on the question of damages only. As to any delay that may have been occasioned the appellant in obtaining a final **651 determination of this case, it is sufficient to say that both of her appeals to this Court have been disposed of without any unnecessary delay. *669 We have considered the various other assignments of error and we do not think that reversible error was committed except on the ground that the last verdict for $5,000 was inadequate to compensate the plaintiff for the damages shown to have been sustained. Reversed and remanded for trial on issue of damages only.


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All Justices concur, except ARRINGTON, J., who took no part, and HALL, LEE, and HOLMES, JJ., dissenting. HALL, Justice (dissenting). I respectfully dissent from the conclusion reached in the majority opinion in this case. All of the Judges are agreed that the trial court had no right or authority to render an opinion and enter a judgment in vacation inasmuch as a term of circuit court had intervened between the time of the order taking the motion for a new trial under advisement and the time when the opinion was issued and a judgment entered thereon without a new order having been entered at the regular December 1956 term of court. Section 1403, Code of 1942, provides for court terms in Warren County, and while it specifies certain terms for civil business and certain terms for criminal business, it does not say that at the several terms civil business or criminal business only shall be disposed of as some of the statutes provide, and this distinction between the statute here involved and other statutes which limit the terms of court to civil or criminal business

only is made clear in the case of Strain v. Gayden, 197 Miss. 353, 20 So.2d 697. What this Court said in Union Motor Car Company v. Cartledge, 133 Miss. 318, 97 So. 801, is directly in point on this proposition. Since we were all in agreement as to the invalidity of the opinion and order in vacation on the motion for a new trial, I shall not belabor this point further, but the majority opinion points out the grounds alleged in the motion for a new trial and proceeds to *670 hold that when the circuit judge ordered a remittitur in vacation that the same was made final by a subsequent order of the court on January 28, 1957. That order is as follows: ‘Plaintiff having declined to accept remittitur in the above matter pursuant to order entered on January

18, 1957, the motion for a new trial as granted is hereby made final, and it is now ordered that this cause be continued for trial until the April term next of this court.’ This is the order and this is all of the order, and it is a peculiar situation that a void vacation order can be made final in term time, especially when there are no findings by the trial judge which would warrant the granting of a new trial. I shall not take the time to quote the trial judge’s findings, but boiled down I will say that he does not find anything but simply asked the plaintiff to remit part of the amount of the verdict for $19,000 ‘which I think is excessive.’ He does not at any time in his findings or in his orders say that the jury were unduly influenced in arriving at their verdict, or that the verdict for $19,000 is unreasonable, or that it would cause an enlightened conscience to shrink at the result, or that it is not a fair and true verdict, and from the whole record it is apparent that the trial judge, without any findings, substituted his opinion for the finding of the jury. I think that the case of Gibson v. A. P. Lindsey, Distributor, Inc., Miss., 103 So.2d 345, 348, not yet reported in State Reports, is directly in point and I take the liberty of quoting at length therefrom:

‘The trial judge, in his written opinion, passing on the question of a new trial, observed that the medical expenses amounted to $576 and that the total loss of time for six months **652 would amount to $1,040. However, in view of the doctor’s statement, the court thought that the verdict was excessive without considering any contributory negligence. The final conclusion was: ‘Therefore, I say in fairness to all concerned I believe *671 the sum of $2500.00 would be fair, reasonable and adequate.’ ‘Nowhere did the court find that the amount of the verdict was so large as to shock the enlightened conscience, or that it was unreasonable, or that it appeared to be


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the result of bias or prejudice, or that it was influenced by passion or corruption, or that, if permitted to stand, it would amount to a manifest miscarriage of justice. It is obvious that the learned judge, insofar as the amount of the award is concerned, simply substituted his judgment for that of the jury. ‘In Chapman v. Powers, 150 Miss. 687, 116 So. 609, 611, this Court announced the following rule: ‘The determination of the question whether the verdict of the jury in a given case is the result of passion or prejudice is fraught with much difficulty. The court in passing upon the question is

not authorized to substitute its judgment

for that of the jury, for the amount of

damages to be awarded is peculiarly

within the province of the jury. But, where the award is so excessive, on the one hand, or so inadequate, on the other, as that it is manifest that the jury were unduly influenced in arriving at their verdict, it is the duty of the court to award a new trial upon that ground alone. Putting it differently, if, to let the verdict of the jury stand, it is apparent to the court that there will be a manifest miscarriage of justice, a new trial should be granted.’ (Emphasis supplied.) ‘In Shelton v. Underwood, 174 Miss. 169, 163 So. 828, 830, the Court said: ‘Before the trial court is authorized to set aside the verdict of the jury, there should be such a state of facts as would render the verdict unreasonable, or show that it was the result of bias and prejudice, amounting to corruption. * * * It must be such a verdict as would cause an enlightened conscience to shrink at the result. The jury has opportunity to see the witnesses and to judge of their fairness, bias, or *672 prejudice, or lack thereof, and from the whole situation arrive at the truth of the matter. The very value of a jury trial consists in the fact that it is a body of twelve men of fair and impartial minds. It

is true the judge has a better knowledge of the rules of evidence, and a better capacity to estimate legal and factual conclusions, than have the jurors; but he cannot substitute his views for that of the jury merely because he feels that the conclusion reached by the jury is wrong. We know that the judge in trying this case, and other judges in this state, are fair and upright men, learned in the law, and only desire to see justice done; but, nevertheless, the jury is an institution which often safeguards the right of litigants. In case a judge shows bias or prejudice, there is no method by which a litigant may eliminate this bias, or get another judge where the judge is not disqualified, for reasons set forth in the Constitution and statutes. “A verdict should only be set aside where it is manifest, from the evidence and surroundings, that it is not a fair and true verdict.’ ‘In Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9, 12, the Court said: ‘Appellant assigns and argues that the verdict is too large; so large that it evinces passion and prejudice on the part of the jury. There is often great difficulty for an appellate court to determine this question. Ordinarily **653 a fair-minded jury is more competent than any judge to fix the amount of damages; however, when the amount awarded is so large that it is shocking to the enlightened conscience it is the duty of the court to set it aside and award a new trial on that ground alone.’ ‘In Sandifer Oil Co., Inc., v. Dew, 220 Miss. 609, 71 So.2d 752, 755, the opinion adopted the following excerpt from the case of Mississippi Central Railroad Company v. Hardy, 88 Miss. 732, 41 So. 505, to wit: ‘It was the province of the jury, and the jury alone, to measure *673 in dollars and cents the amount due him for physical and mental anguish and suffering, and, unless in a case where the


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verdict plainly shows that the jury must have been influenced by passion, prejudice, or corruption, this court never interferes with their finding as to damages. * * * This Court has no scale delicate enough to weigh physical and mental anguish. At best it is an extremely difficult task. The law has committed this delicate task to the unbiased judgment of the 12 plain, practical, everyday men who compose the jury, and it can nowhere be more safely rested than in the application of their good sense and honest judgment to the particular facts proven in each particular case.’ ‘In Illinois Central Railroad Company v. Harrison, 224 Miss. 331, 80 So.2d 23, 26, the opinion cited the first mentioned excerpt from Shelton v. Underwood, supra, and reiterated the principle that: ‘The judge may not substitute his judgment for that of the jury merely because he would have decided the matter differently. * * * Conflicts in the testimony and the veracity of witnesses are for the determination of the jury, not the judge’, citing a number of cases. ‘It may be conceded that the verdict was large. Of course, $5,000 is a substantial sum of money. But when there is taken into consideration the kind and nature of Gibson’s injury, his loss of earnings and medical expenses, and the pain and suffering which the jury had a right to believe that he endured, it must also be conceded that his damage was substantial. Had the verdict come here without diminution, this Court, following the applicable principles, which have been stated above, in its appraisal thereof, would have declined to reduce the amount of the award. The Court is further of the opinion that the trial judge should not have done so, and that he should not have substituted his judgment for that of the jury. *674 ‘Consequently, on direct appeal, the

judgment of the trial court, in ordering a remittitur in the amount of $2,500 is reversed and a judgment will be entered here for the appellant, reinstating the original judgment of $5,000 in his favor, based on the verdict of the jury. On cross-appeal, the judgment is affirmed.’

It is to be observed that the author of the controlling opinion in the case at bar concurred in the foregoing announcement of the law and one of the Judges joining therein with him concurred in the foregoing announcement of the law. Moreover, the author of the opinion in the case of Illinois Central Railroad Company v. Harrison, 224 Miss. 331, 80 So.2d 23, 26, now agrees with the majority, but in that case he said ‘The judge may not substitute his judgment for that of the jury merely because he would have decided the matter differently’, and the author of the majority opinion in the case at bar, as well as two of the Judges who joined with him therein, agreed to the foregoing statement of the law. **654 It is interesting to note that the controlling opinion says that the majority of the Judges joining therein are of the opinion that since the trial court on January 28, 1957, during the regular term, sustained the motion for a new trial, he was justified in so doing on the grounds stated in the motion. I have gone back and examined the original record in Gibson v. A. P. Lindsey, Distributor, Inc., supra, and it is worthy of note that in that case the trial judge entered an order taking the motion for a new trial under advisement and that the motion for a new trial contained identically the same allegations as in the case at bar, among other things that the verdict was contrary to the overwhelming weight of the evidence and that it was excessive and evinced passion and prejudice on the part of the jury. In the Gibson case the trial judge went ahead and rendered a written opinion and entered an


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order sustaining the motion for a new trial unless a remittitur was entered, just as in the case *675 at bar; and on appeal this Court decided as hereinabove shown that the trial judge exceeded his authority in sustaining the motion for a new trial without any finding that the verdict was against the overwhelming weight of the evidence or that the verdict was so excessive as to evince passion and prejudice on the part of the jury, and in that case the Court did not hold that since the opinion and order on the motion for a new trial were unauthorized that the motion was still pending for decision at a subsequent term, but on the contrary since he had no right to substitute his judgment for that of the jury, his judgment in the case was reversed and a judgment was here entered reinstating the original judgment which was based on the verdict of the jury. It is undisputed that after the tornado the appellant’s building could have been repaired and replaced at a cost of from $2,500 to $3,000. The contractor, Mr. Thomas Darby, a wholly disinterested witness, went on top of the building and inspected the same after the tornado. Mr. Darby testified that he had just finished putting a new roof covering on top of the building the evening of the cyclone with the exception of one strip of roofing. He said that he went to the building the night of the tornado but his flashlight was dim and he could not tell much about the damage. He also returned the next day and looked over the whole building and observed only one hole in the roof. The numerous photographs which were introduced in evidence, made after the damage sued for, showed a distinct separation of the west wall of the appellant’s building from the hotel building; but the photograph made by the U. S. Engineers after the tornado and before the damage sued for fails to show this separation, and Mr. Darby was unable to see the same until after the brick were dumped on the

appellant’s building. Mrs. Long testified positively that her building was not separated from the hotel after *676 the tornado but became separated as the brick from above were piled on her. The controlling opinion mentions the testimony of Lawrence Hennessey, a real estate expert, and at this point the majority have fallen into the same error that the lower court fell into, to wit: Substituting its judgment for that of the jury. The controlling opinion says ‘In other words, we think that the defendants would not be liable to the plaintiff for any damage in excess of the amount that they actually damaged her then existing building by the throwing of the bricks and stone onto the roof thereof.’ It is strange that the majority opinion cites no authority whatsoever in support of this conclusion. What the Court is saying is that the building code of Vicksburg should not be taken into consideration in arriving at the amount of appellant’s damage. Directly the opposite was held in the case of Zindell v. Central Mutual Insurance Company of Chicago, 222 Wis. 575, 269 N.W. 327, 107 A.L.R. 1116. The first paragraph of the syllabus in that case is: ‘Plaintiff in an action in tort for damage to his garage is entitled to have the garage restored in such **655 a way as to meet the requirements of building regulations applicable to repairs of the extent rendered necessary by the tort, he having otherwise had the right to maintain the building in its previous condition.’ In 107 A.L.R. beginning on page 1122, there is an annotation as to the amount recoverable from one liable for damage to a building as affected by building regulations applicable to restoration or repair of damaged buildings. The Zindell case is cited in this annotation and there is nothing therein which conflicts with the holding of the Wisconsin court. The controlling opinion


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says this case is not shown to be in accord with the majority rule but the opinion studiously avoids citing one word of law as to the majority rule. *677 In 15 Am.Jur., Damages, Section 113, it is said near the middle of page 524: ‘The owner is entitled to have the building restored so that it can be used for all purposes for which it was being lawfully used at the time it was injured and in such a way as to meet the requirements of building regulations applicable to repairs of the extent rendered necessary by the tort, although he otherwise had the right to maintain it in its previous condition. In other words, the cost of repairing or reconstructing the structure so as to comply with building regulations is the proper guide, and where the cost of reconstruction is the proper measure of damages, the defendant is liable for an increased cost of reconstruction due to building regulations which do not permit the restoration of the building with the same materials or in the same manner used in the erection of the original building.’ To the same effect as the Zindell case is Stenger v. Hope Natural Gas Company, 141 W.Va. 347, 90 S.E.2d 261. See also Ollie v. Security Mutual Underwriters, 4 Cir. , 235 F.2d 932 and Fidelity and Guaranty Insurance Corporation v. Mondzelewski, 10 Terry 306, 49 Del. 306, 115 A.2d 697. How in the world the majority of this Court can ignore the above-mentioned law and lay down a contrary rule is beyond me. The trial court was evidently of the same opinion as the majority of this Court because he declined to admit the building regulations in evidence, in which he was palpably in error. As to the amount of damages in this case, Mr. Raymond Birchett of Jackson, Mississippi, an architect and engineer, made a complete diagram of appellant’s building and testified in this case that the cost of

replacing the appellant’s building in view of the requirements of the building code, which are a part of the record in this case, is $23,669. This testimony was by a competent and capable man from another city who was wholly disinterested and pertained to the damage only to the building. *678 Much is made in the controlling opinion about the military authorities ordering the brick removed which had been loosened by the force of the tornado. What the controlling opinion entirely ignores is the testimony of Mr. U. J. Little of Jackson, Director of the City Building Department, who went to Vicksburg on request of the Mayor of Jackson to offer the services of the City of Jackson in connection with their tornado damage and who later went back to Vicksburg on the request of the Mayor of Vicksburg. He said that the military personnel was stationed on the ground floor of the Vicksburg Hotel, and he said that one of the military personnel was Chief Aide to General Wilson and when Mr. Reed was having the brick thrown from the top of the hotel onto the appellant’s building adjacent thereto Col. Wright issued an order for Mr. Reed to stop throwing the bricks off or he was going to put him in jail, and as soon as this information was communicated to Mr. Reed the dumping of the brick from the top of the hotel was stopped. As a matter of fact on the extreme southeast corner of the top of the hotel there was a bunch of brick which had been broken loose and it was these brick that the military had desired to have removed, and the sidewalk was walled off and that bunch of brick was pushed overboard, most of them falling **656 onto the sidewalk, but there was never any order to dump all of the brick along the side of the hotel onto Mrs. Long’s property. It is inferred that the brick could not be removed from the side of the hotel without simply pushing them overboard. A


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consulting engineer from New Orleans testified as to the method of constructing a scaffold or platform underneath the brick so that they could be removed without throwing them on Mrs. Long’s building. It is true that Mr. Reed said that the methods suggested by this consulting engineer could not have been followed, but it appears that after these brick were thrown *679 down Mr. Reed obtained a steel platform which he fastened to the side of the hotel and the reconstruction of the brick wall proceeded from this steel platform which entirely disproves the idea that the erection of a platform was not feasible. It is interesting to note that in the controlling opinion, on the value of real estate, there is quoted the testimony of Mrs. Long, but little is said about the damage to her personal property, some of which was completely destroyed by the dumping of the brick and concrete onto her building. Only a small portion of the valuable things itemized in the bill of particulars was removed by Mr. Darby to the appellant’s garage. She made no effort to conceal any information as to what was removed to the garage and what was not, and there was no testimony whatsoever by the appellees which disputed her evidence. The valuable refrigerator, counter, and other fixtures were completely ruined by the appellees’ act and not by the tornado. As to the production of records by the plaintiff, she had nothing to conceal and produced her income tax reports but stated that all of her other records were destroyed in the tornado, but it is undisputed that she and her mother and daughter all made their living out of the restaurant. The appellant requested, and the lower court refused, an instruction which would have authorized the recovery of punitive damages, and the opinion says that this is not a proper case for punitive damages. The record shows that Mr. Reed took no

precautions for protecting the building of Mrs. Long and he admitted that he just wantonly pushed off 100 to 150 brick, as well as some of the concrete, either from the coping or from a window ledge, and let it all fall on the Long building. His action in so doing was wanton in the extreme and in utter disregard of the rights of the appellant. The Court thought entirely differently in the case of D. L. Fair Lumber Company *680 v. Weems, 196 Miss. 201, 16 So.2d 770, 773, 151 A.L.R. 631, wherein it said, after citing Mississippi authorities on the subject, ‘* * * and it needs no authority to sustain the proposition that the breaking down and destruction of another’s fence is a tort, and when done under circumstances of such gross and persistent wrong as to manifest an indifference to the consequences and of the rights of others, that it is a tort which will justify punitive damages; and that is what the jury found, and was well supported by the evidence and finding in this case.’ It is most regretable that the majority of the Court have departed from the law of Mississippi on the questions discussed herein and have departed from the law from other jurisdictions as to which there is not a single case, so far as I can find, which supports the proposition that the appellant is entitled to no damages above the damage to her existing building which she cannot replace except under the building code, and she frankly said that she has not replaced it according to the building code because she does not have the money necessary to so rebuild it. This case has been tried three times. I don’t think that the $19,000 judgment was properly set aside, and I am of the opinion that the $5,000 judgment of the lower court should be reversed and the $19,000 judgment reinstated, just as was done in the case of Gibson v. A. P. Lindsey, Distributor, Inc., supra. **657 The controlling opinion cites Gordon v. Lee, 208 Miss. 21, 43 So.2d 665,


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Swartzfager v. Southern Bell Telephone & Telegraph Company, Miss., 110 So.2d 380, and Green v. Hatcher, Miss., 105 So.2d 624, not yet reported in the State Reports, in all of which this Court reversed and remanded the case because of inadequacy of verdicts, but I fail to see in what respect those cases are in point on any question raised in this case. In those cases there was no verdict which the court set aside and refused to reinstate the original verdict. Nobody contends here that we would be justified in

*681 writing an entirely new verdict so as to infringe on the province of the jury. It is only contended that the $19,000 verdict should be reinstated and there is ample precedent for such a contention. Our reports are full of cases where an original verdict has been set aside by the trial court on a judgment notwithstanding the verdict entered by the trial court, and, on appeal to this Court the original verdict has been reinstated and judgment entered thereon in this Court. That is all that appellant seeks. The controlling opinion says that there was an erroneous instruction granted to the appellant at the trial when the $19,000 verdict was rendered. The briefs in this case make no complaint about the alleged erroneous instruction, but the controlling opinion goes out of the way to refer to an instruction which it is said was incorrect. The instruction in question tells the jury that if they find for the plaintiff, their verdict should be for such amount as in their judgment the evidence in this case warrants, and then it goes on to say that in determining the amount of damages, if any, they may take into consideration the following:

‘The difference in the total fair market value of Mrs. Long’s entire property immediately before and immediately after M. T. Reed dislodged the loose brick from the upper east wall of the hotel as shown by the evidence.

‘Any damage in the fixtures, furnishings, equipment and other personal property in Mrs. Long’s building caused by either or both defendants based on the actual value thereof in its condition at the time of any such damage by either or both the defendants, if any. ‘Loss of earnings, and loss of use of her building for a reasonable time, if any, proximately caused by and directly attributable to any negligent acts of either or both defendants, if any.’

*682 The controlling opinion says that this instruction authorized the plaintiff to recover for the loss of earnings and the loss of use of her building for a reasonable time, and that this authorized the jury to pyramid damages. As I see it, Mrs. Long was entitled to recover for all of the damages which are mentioned in this instruction and that there was no authority conferred upon the jury to pyramid the damages. 15 Am.Jur., Damages, Section 131, says that the rental value of real property may be recovered. Following this, in Section 133, American Jurisprudence also discusses the question of injury to, or interruption or destruction of, business, and this is mentioned not merely as the sole damage which may be recovered but as one of the elements of damage. Section 133 says: ‘The destruction or interruption of a business, or an injury thereto, by the wrongful act of another is a proper element of damage, provided, of course, it is the natural and proximate result of such act, and the injured person is entitled to recover all such damages as are the natural and proximate result of the wrongful act complained of.’ Following this, there is discussed the damages resulting from a breach of contract, and the author of the text then reverts to a discussion of the recoverable elements of damage in general and says: ‘Recoverable elements of damage in such cases are the loss of commercial


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credit or of business standing, the loss of customers or business, **658 if not too remote, plus, according to some authorities, the resulting loss of profits, the loss of employees, and the additional expense made necessary in conducting a business by the wrongful act of another. In some jurisdictions the owner may recover the rental or usable value of the property in case of the interruption or curtailment of the operation of a factory or plant. The loss sustained owing to the enticing away or malicious arrest of the plaintiff’s servant or the wrongful taking and withholding *683 of his chattels, may be recovered, provided such loss is the natural and proximate consequence of the tortious act.’ It seems clear that American Jurisprudence authorizes the recovery of both elements of damage which are included in the instruction discussed in the controlling opinion and this is without reference to the question of pyramiding damages. The damage in this case was caused shortly after the Vicksburg tornado of December 5, 1953. If there was ever a case in which a plaintiff seeking justice has been dragged around and unjustly delayed and is required to submit to further delays and expense, this is it. LEE, Justice (dissenting). The evidence for the plaintiff was to the effect that the damage to the building from the tornado could have been repaired for $2,500 or $3,000. Raymond Birchett, an architect and engineer, testified that he made two estimates in connection with the building after the dumping of the brick and stone thereon by the appellees. The first was based on the cost of repairing the building without compliance with the building code of the city, the amount thereof being $17,291.48; and the second was based

on the cost of such repair in compliance with the building code, the amount thereof being $23,669. From both of the estimated amounts, $2,500 or $3,000, the damage from the tornado, necessarily had to be subtracted. Deducting these amounts, respectively, from the damage on the first estimate, the remainders are $14,791.48 and $14,291.48, respectively. While some of the appellant’s personal property in the building was removed, apparently undamaged, she did testify that her personal property damage was $4,557. When that amount is added to either of the above mentioned remainders, the sum being slightly more in the first, and slightly less in the second, instance than the jury’s verdict of *684 $19,000, I am unable to see how the verdict was even excessive, much less grossly excessive. But repairs to the building so that it could be restored to its former use must be made in compliance with the building code of the city. No obstacle would have been encountered, in this respect, in repairing the tornado damage. The jury found that the negligence of the appellees proximately caused the damage to the building subsequent to that inflicted by the tornado. As I see it, the appellant was entitled to be made whole in order that she might use the building as she did formerly. If her damage should be admeasured under that rule, clearly the jury was warranted, under Birchett’s second estimate, in returning a verdict for $19,000 and the damage to personal property could be entirely forgiven and forgotten. The recent case of Gibson v. A. P. Lindsey, Distributor, Inc., Miss., 103 So.2d 345, collated a number of our cases and reaffirmed their holdings on the question here involved. I am of the view that the trial judge, in the present case, did exactly what


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the trial judge did in Gibson v. A. P. Lindsey, Distributor, Inc., namely, substituted his judgment for that of the jury. Consequently, I think that he was in error in setting aside the verdict and judgment for $19,000 in the first trial, and that this Court should now reverse this case and reinstate the original judgment. **659 HOLMES, Justice (specially

dissenting). I dissent to the extent that in my opinion the $5,000 judgment of the lower court should be reversed and the $19,000 judgment reinstated. 111 So.2d 645, 236 Miss. 655 END OF DOCUMENT


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ONEBEACON INSURANCE GROUP v. RSCCORPORATION, 69 Mass. App. Ct. 409 - Mass: AppealsCourt 2007

69 Mass. App. Ct. 409 (2007)

ONEBEACON INSURANCE GROUP[1] & others[2]

v.

RSC CORPORATION & another.[3]

No. 06-P-953.

Appeals Court of Massachusetts, Middlesex.

December 14, 2006.June 25, 2007.

Present: Lenk, Armstrong, & Cypher, JJ.

Douglas F. Hartman for the defendants.

James P. Cullen, Jr., of Pennsylvania (Patrick J. Loftus, III, with him) for the plaintiffs.

ARMSTRONG, J.

On a rainy, blustery weekend in December, *410 1998, George and Sharyn Neble sufferedmajor water and some structural damage to their house in Winchester. In this action based oncontract and tort theories of recovery, they alleged that the damage was due to the negligenceof a contractor, the defendant Stephen Ryan, who was doing reconstruction work on the house.Ryan and his corporation (RSC Corp.) appeal from a judgment for substantial damages basedon the verdict of the jury.

410

The cause of the damage, briefly described, was in the tarpaulin protection Ryan arranged onFriday at the end of the workday to shelter from the weather a portion of the upper floors wherehe had removed a sunroom and was replacing it with a bath and dressing area to serve themaster bedroom. On Sunday evening — one marked by heavy rains and strong winds — theNebles arrived home to find water dripping from exposed ceiling beams in downstairs roomsunder the construction area and running down walls. (The water was rust colored and wasstaining draperies, furniture, and carpeting.) They went to the basement to see if water wasinfiltrating and were there when they heard (and felt) a large crash and found water pouringdown the cellar stairs. It was later surmised, and not contradicted, that large amounts of waterhad pooled in the tarpaulins which finally gave way, causing a large volume of water to crashthrough the construction area and through the first floor ceiling. At some point that evening thecellar ceiling also collapsed. Ryan was faulted for not having constructed a temporary plywoodsubstrate to prevent the tarpaulins from sagging and acting as a reservoir.

The defendants — Ryan and his corporation — raise five points on appeal. The first is that thejudge, acting on the plaintiffs' motion in limine, improperly barred the defendants from pursuingan "act of God" defense. In particular, the defendants sought to put in evidence the report of ameteorological expert which purported to demonstrate that the stormy weather, particularly onSunday from 2 P.M. to 8 P.M., which totaled two inches of rain with sustained winds of thirty-to-forty miles per hour and gusts to fifty-five, was historically so unusual in its ferocity that itcould be found to be an act of God, defined in the authorities as "the action of an irresistiblephysical force, or the violence of natural phenomenon, . . . not referable to *411 participation by411

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man through unreasonable failure to anticipate danger or to put forth protectiveinstrumentalities, and overpowering all preventative measures exacted by the wisdom andforesight of prudent men in the light of the warnings of experience and the observations ofgeneral climatic conditions. . . and all other available sources of information." Bratton v.Rudnick, 283 Mass. 556, 561 (1933). A good example of the concept — a force of nature sopowerful as to overwhelm all normal precautions — is found in the decision of Justice Qua inHoosac Tunnel and Wilmington R.R. Co. v. New England Power Co., 311 Mass. 667, 671-673(1942), concerning the effects of the 1938 hurricane; and one might imagine the recent Asiantsunami, or possibly the far more common direct strike of a tornado. The concept thedefendants seem to have been reaching for is a storm so powerful as to make preparationuseless or so little that the defendants' failure to design adequate precautions is excusable.Contrast L.G. Balfour Co. v. Ablondi & Boynton Corp., 3 Mass. App. Ct. 658, 661 (1975), andcases cited.

It is hard to see what was lost by the judge's ruling precluding evidence underlying that line ofargument. The jury heard the hard facts of the severity of the storm (the two inches of rain, thewind speed) from two sources: the plaintiffs' meteorologist (the storm was correctly forecastfrom Thursday on, it was clear by Saturday the rainfall would be heavy and the winds high) andthe defendants' meteorologist (the storm was under-forecast, rainfall was heavier and windshigher than expected), and it is not too much to suggest that the jury were capable of reachinga commonsense conclusion on the adequacy of Ryan's tarpaulins to withstand a rainy, windynight in New England in December without expert testimony on the statistical likelihood of suchstorms. Both agreed that the weekend of rain was predicted, and the jury could properly reachthe conclusion that the problem was not the amount of rain that fell but rather the fact thatRyan's tarpaulin system collected water instead of shedding it. There was no error.

The defendants' second contention was that the judge erred in permitting the plaintiffs torecover for code upgrades needed in the repairs. The house was heavily built near the turn ofthe *412 last century by the man who constructed the former Boston Garden. It had fourteeninch thick masonry walls with metal lathe and heavy plaster wetwall construction — all of whichabsorbed and retained the water that flooded the floors and ran down through the ceiling andwalls. It was necessary to replace walls, wiring, the heating systems, and even some plumbing,floor joists, and flooring; but to do the repair work, building permits were required, which couldnot be issued except for work that complied with present-day codes. The defendants rely on theprinciple that "care must be taken . . . not to permit the injured party to recover more than is fairto restore him to his position prior to his loss. He should not recover a windfall." MassachusettsPort Authy. v. Sciaba Constr. Corp., 54 Mass. App. Ct. 509, 517 (2002). Here the defendantsargue, the plaintiffs will recover a windfall if they can recover for code upgrades, because theywill have a code-compliant house rather than one that is non-compliant. The fallacy in thisreasoning is the assumption that the former must be worth more than the latter. Such is not thecase unless the non-compliant house is burdened with an obligation to bring it up to code.There was no such obligation prior to the massive water infiltration. The house wasgrandfathered in its pre-code condition. Code compliance was not to make the house morelivable or comfortable; it had nothing to do with the house being obsolete, non-functional, orworn out. It is simply part of the cost of doing the repair work necessitated by the defendants'

failure to take adequate precautions against water damage.[4] The recovery of the cost of thecode upgrades did not violate the central principle, that "the *413 replacement or reconstructionitself must be reasonably necessary in light of the damage inflicted by a particular defendant."Trinity Church in the City of Boston v. John Hancock Mutual Life Ins. Co., 399 Mass. 43, 50(1987).

412

413

The remaining three points raised by the defendants require little discussion. One concernedthe admission in evidence of a loss estimate prepared by a public loss adjustor, whose estimatewas used as the checklist by OneBeacon's loss adjustor, in computing her own loss estimates,which in turn were the basis on which OneBeacon compensated the Nebles. The publicadjustor did not testify; his report was authenticated by OneBeacon's adjustor, whosehandwritten amendments were noted thereon — some items up, some down. It was properlyadmitted as constituting part of the basis for her opinion. There was no violation of the hearsayrule. See Beal Bank, SSB v. Eurich, 444 Mass. 813, 818 (2005) (records of one business areadmissible as business records of another business where the records are integrated into the




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latter's records and relied on); McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819 (2006). Thejudge offered to give a limiting instruction if the defendants prepared it, but they did not do so.Nor did the judge show partiality by deflecting a line of questioning that sought to impeachSharyn Neble for not having with her on the witness stand detailed financial records she had

not been directed to bring by subpoena or otherwise.[5] Finally, no objection was made to asingle question the judge asked during the cross-examination of OneBeacon's adjustor, and thedefendants may not now question its propriety. In any event, there was nothing in the judge'sinfrequent questions or comments that suggested partisanship. See generally Commonwealthv. Hassey, 40 Mass. App. Ct. 806, 810-811 (1996), for a discussion of judicial questioning andits limits.

There being no error in the conduct of the trial, the judgment must be affirmed.

So ordered.

[1] Formerly known as Commercial Union Insurance Company, as subrogee of George and Sharyn Neble.

[2] George Neble and Sharyn Neble.

[3] Stephen M. Ryan.

[4] In effect, this is precisely the reasoning employed by Judge Lasker in the unreported decision, Federal Ins. Co. vs. CogswellSprinkler Co., U.S. Dist. Ct., No. 03-CV-10920-MEL, slip op. at 5 (D. Mass. Sept. 30, 2004):

"(1) [T]his is the only remedy that allows property owners to be placed in the position they occupied before the tortious event, byrestoring the building to a condition in which it can be reoccupied and utilized as before; (2) the upgrade expenses would nothave been incurred but for the triggering tortious event of the water damage; and (3) any other outcome would essentiallypenalize the property owners for the tortfeasor's negligence by forcing property owners to expend potentially significant sums oftheir own money on upgrades necessary for code compliance."

To the same effect, see Zindell v. Central Mut. Ins. Co. of Chicago, 222 Wis. 575, 582-583 (1936); Jesel v. Benas, 160 S.W.528, 529 (Mo. App. Ct. 1913); Peluso v. Singer Gen. Precision, Inc., 47 Ill. App. 3d 842, 856 (1977).

[5] The records were apparently already in the possession of the defendants' counsel in response to discovery.




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