{ "id": 2821135, "name": "Carol J. Miller, Plaintiff-Appellee, v. Isidor Simon, Doing Business as I. Simon & Son, Mundelein Realty Corporation, and Ned B. Simon, Defendants-Appellants", "name_abbreviation": "Miller v. Simon", "decision_date": "1968-09-26", "docket_number": "Gen. No. 52,425", "first_page": "6", "last_page": "13", "citations": [ { "type": "official", "cite": "100 Ill. App. 2d 6" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "127 NE 342", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "293 Ill 112", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4986118 ], "opinion_index": 0, "case_paths": [ "/ill/293/0112-01" ] }, { "cite": "38 NE2d 734", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "378 Ill 428", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2549333 ], "opinion_index": 0, "case_paths": [ "/ill/378/0428-01" ] }, { "cite": "115 NE 849", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "278 Ill 30", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4872184 ], "opinion_index": 0, "case_paths": [ "/ill/278/0030-01" ] }, { "cite": "43 NE 393", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "160 Ill 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3128695 ], "opinion_index": 0, "case_paths": [ "/ill/160/0288-01" ] }, { "cite": "82 NE 868", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "230 Ill 562", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5631673 ], "opinion_index": 0, "case_paths": [ "/ill/230/0562-01" ] }, { "cite": "153 NE2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill App2d 564", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5187001 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/18/0564-01" ] }, { "cite": "53 NE 565", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "179 Ill 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5546084 ], "opinion_index": 0, "case_paths": [ "/ill/179/0071-01" ] }, { "cite": "176 NE2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill App2d 372", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5226654 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/31/0372-01" ] }, { "cite": "112 Ill 192", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2861396 ], "opinion_index": 0, "case_paths": [ "/ill/112/0192-01" ] }, { "cite": "58 NE 290", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "187 Ill 28", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3229809 ], "opinion_index": 0, "case_paths": [ "/ill/187/0028-01" ] }, { "cite": "49 NE 553", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "171 Ill 383", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3177096 ], "opinion_index": 0, "case_paths": [ "/ill/171/0383-01" ] }, { "cite": "3 Ill App 252", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5776825 ], "opinion_index": 0, "case_paths": [ "/ill-app/3/0252-01" ] } ], "analysis": { "cardinality": 593, "char_count": 10391, "ocr_confidence": 0.598, "pagerank": { "raw": 2.9163454367384095e-07, "percentile": 0.8461800282564736 }, "sha256": "e3fea2c9864d9fa8ed0d1efa9ec8dc3d56b6b7d56c423f48de6ea8ff73fd3b77", "simhash": "1:e36730b5a824634d", "word_count": 1747 }, "last_updated": "2023-07-14T20:54:23.825564+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Carol J. Miller, Plaintiff-Appellee, v. Isidor Simon, Doing Business as I. Simon & Son, Mundelein Realty Corporation, and Ned B. Simon, Defendants-Appellants." ], "opinions": [ { "text": "MR. JUSTICE SULLIVAN\ndelivered the opinion of the court.\nDefendants appeal from a judgment entered in favor of the plaintiff in an action for damages for trespass to the plaintiff\u2019s realty. The case was tried before the court without a jury and the court assessed compensatory damages in the sum of $2,765 and punitive damages in the sum of $1,500.\nThe plaintiff is the owner of two adjacent vacant lots which were surrounded on three sides by approximately 300 lots owned by the defendant, Mundelein Realty Corporation, in the village of Mundelein, Illinois. These lots owned by Mundelein Realty Corporation were being developed as part of the Bel-Aire subdivision by Isidor Simon, doing business as I. Simon & Son, a co-defendant. Isidor Simon and his son, codefendant Ned B. Simon, were officers of the Mundelein Realty Corporation.\nIn order to prepare its land for development and ultimate occupancy, Mundelein Realty Corporation balanced its land by removing topsoil and trees so that sewers, streets, water mains, curbs, fire hydrants and gutters could be installed. It is undisputed that in the course of this activity the defendant corporation balanced the plaintiff\u2019s property and removed topsoil and trees therefrom.\nPlaintiff testified that in the fall of 1963 she went upon her property, whereupon she discovered that one of her two lots had been stripped of topsoil and that some of the trees had been removed. She immediately went to the office of the Bel-Aire concern managed by the defendant, I. Simon & Son. After informing a representative of the office that her property had been damaged, the plaintiff was told that she could \u201chelp herself\u201d to the pile of black dirt which had been gathered from the stripping of the lots. Subsequent to this conversation, the plaintiff testified that gravel was placed upon her property, that parking signs had been erected on it, and that the remainder of topsoil on her other lot had been removed. Plaintiff\u2019s attorney sent a letter to Mundelein Realty Corporation and demanded that the signs and gravel be removed and demanded reimbursement for the removal of the topsoil and the severance of the trees. Ned B. Simon responded on behalf of the corporation that the gravel and signs would be removed but also defiantly informed the plaintiff that she would be held to pay for the improvements that the defendant had made on adjacent properties to the extent those improvements enhanced the value of the two lots. The defendant made no offer to reimburse the plaintiff for the existing damage or to replace the removed topsoil and trees.\nThe defendants offered testimony of several real estate experts that the plaintiff\u2019s lots were in fact enhanced in value due to the surrounding improvements of the defendants. The plaintiff offered the opinion of her own real estate expert that the land was not so enhanced. There was evidence that Mundelein Realty Corporation had purchased the surrounding lots for approximately $600 per lot in December 1958, and that some of these lots were sold by them for $3,750 per lot after the spring of 1963, at which time the improvements had been installed.\nIt is argued by the defendants that the record is barren of any evidence with which to impose individual liability upon Isidor Simon and Ned B. Simon. The trial judge, as the trier of fact, was warranted in finding that these defendants were personally liable for the trespass. One who orders, aids, directs, abets, or assists the commission of a trespass is liable for the resultant damages, even if such an individual did not benefit from the trespass. Ferriman v. Fields, 3 Ill App 252; Northern Trust Co. v. Palmer, 171 Ill 383, 49 NE 553; Donovan v. Consolidated Coal Co. of St. Louis, 187 Ill 28, 58 NE 290. The two officers are not insulated from liability for the tortious acts of the defendant, Mundelein Realty Corporation, since it has been well established that an officer of a private corporation is liable for any tort of the corporation in which he participates or authorizes, even though he was acting for the corporation in the commission of the tortious activity. Peck v. Cooper, 112 Ill 192 (see: 3 Fletcher Cyc Corp, 849). There was ample evidence that Isidor Simon, doing business as I. Simon & Son, a sole proprietorship at the time of the trespass, directed some or all of the improvements for the Bel-Aire development. He admitted that he personally instructed the engineers in the removal of trees in the area. Ned Simon testified that he knew that the topsoil had been removed and that he even knew where the plaintiff\u2019s removed topsoil was stockpiled.\nThere was sufficient evidence to establish that the defendants had placed a parking sign on the plaintiff\u2019s property. However, the defendants argue that since there was no evidence that customers\u2019 cars were in fact seen parked on the property the award of $375 for the reasonable rental value of the property was erroneous. Mesne profits can be recovered when there is a trespass and a tortious holding of the property and that such damages can be ascertained by the reasonable rental' value which represents the worth of use of the premises. Falejczyk v. Meo, 31 Ill App2d 372, 176 NE2d 10; Western Book & Stationery Co. v. Jevne, 179 Ill 71, 53 NE 565. The trial judge in the instant case could reasonably conclude that the placing of a \u201cpark here\u201d sign on the plaintiff\u2019s lot was the defendants\u2019 assertion of dominion and right to use that lot for parking. This court is not willing to disturb that conclusion simply because of the fortuitous fact that either no witness saw cars parked on the premises or that no customers availed themselves of the opportunity to park on the property in question.\nAnother argument advanced by the defendants is that there was no basis for the assessment of punitive damages. There is no evidence that any of the defendants possessed a mistaken belief in good faith that they had title to the two lots at issue. The defendants, experienced realtors, never made any attempt to ascertain the ownership of these lots or the precise boundaries of their properties. After the plaintiff had orally notified the defendants of the damage, she was told defiantly that \u201cWe will build you a house. . . .\u201d and the defendants subsequently removed even more of the plaintiff\u2019s topsoil and placed gravel upon her land. Ned B. Simon\u2019s response to the letter written by the plaintiff\u2019s attorney was appropriately termed \u201csmart alec\u201d by the trial judge. It also appears that defendants have made no attempt to replace the topsoil and trees.\nMalice is a question of fact to be determined by the trier of fact and it can be inferred when one acts with a wanton, wilful, or reckless disregard for the rights of another. Madison v. Wigal, 18 Ill App2d 564, 153 NE2d 90; Chicago Consol. Traction Co. v. Mahoney, 230 Ill 562, 82 NE 868; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill 288, 43 NE 393. The defiant, irresponsible, and aggravating conduct of the defendants in the case at bar amply supports an award of punitive damages.\nThe defendants also argue that the trial court erred in awarding compensatory damages in excess of nominal damages because the Mundelein Realty Corporation actually enhanced the value of plaintiff\u2019s property due to the improvements made upon the surrounding property. It is apparent from the record that the trial judge did not accept the plaintiff\u2019s or her expert\u2019s testimony that the value of the two lots was not so enhanced, yet he still awarded damages for the severed trees and topsoil and for the rental value of the parking lot.\nThe court finds no error in such an award since the trial judge properly treated the enhancement evidence as irrelevant. In Conklin v. Newman 278 Ill 30, 115 NE 849, it was held that the trial court properly excluded the defendant\u2019s evidence which attempted to show that his act of trespass in cutting down the plaintiff\u2019s hedge fence was beneficial to the property. On page 36 the court said:\n\u201cEven though the removal of the hedge might be beneficial to appellee\u2019s farm as a whole, still the hedge contained material of value which was appropriated by appellants, and if she was the owner of the south half of the hedge she is entitled to recover for it. Appellee has the right to manage her own farm as she sees fit, and appellants do not have the right to interfere with that management and dictate what will or will not be beneficial to her land. If they committed a trespass and appropriated property of value she is entitled to recover for that without regard to what effect, if amy, the result of the trespass has upon her farm as a whole\" (Emphasis supplied.)\nThe argument of the defendants in the case at bar is even more tenuous than that of the appellants in the cited case since here the defendants are contending not that the particular act of trespass directly benefitted the plaintiff\u2019s lots but rather that the independent and unrelated acts of improvement to the surrounding properties inured to the benefit of the plaintiff thereby negating her damage sustained by their trespass. To sustain this line of argument is to give license to reckless trespassers to enter another\u2019s property, appropriate things of value therefrom and then absolve themselves of all liability by making surrounding improvements.\nWhere one wrongfully severs valuable property from the land of another the latter can recover the value of the appropriated property in its severed condition. Citizens Nat. Bank v. Joseph Kesl & Sons Co., 378 Ill 428, 38 NE2d 734; Sikes v. Moline Consumers Co., 293 Ill 112, 127 NE 342. Therefore we find no error in the award of $1,890 for the removed topsoil. The award of $500 in damages for the severance of the plaintiff\u2019s fruit and ornamental trees is also supported by the instant facts and applicable authority.\nFor the reasons expressed above, the judgment is affirmed.\nAffirmed.\nDEMPSEY, P. J. and SCHWARTZ, J., concur.", "type": "majority", "author": "MR. JUSTICE SULLIVAN" } ], "attorneys": [ "Rubenstein & Gelfman, of Chicago (Michael Levin and Harry G. Fins, of counsel), for appellants.", "Arvey, Hodes & Mantynband, of Chicago (Ralph A. Mantynband, of counsel), for appellee." ], "corrections": "", "head_matter": "Carol J. Miller, Plaintiff-Appellee, v. Isidor Simon, Doing Business as I. Simon & Son, Mundelein Realty Corporation, and Ned B. Simon, Defendants-Appellants.\nGen. No. 52,425.\nFirst District, Third Division.\nSeptember 26, 1968.\nRubenstein & Gelfman, of Chicago (Michael Levin and Harry G. Fins, of counsel), for appellants.\nArvey, Hodes & Mantynband, of Chicago (Ralph A. Mantynband, of counsel), for appellee." }, "file_name": "0006-01", "first_page_order": 12, "last_page_order": 19 }