Mittel v. City of Chicago

Wilsor, P. J. This was an appeal from a judgment of the Circuit Court of Cook county, confirming an assessment made by commissioners appointed by the county court to make an assessment under an ordinance passed by the city council for the improvement, by curbing, grading and paving North avenue, from the west line of North Clark street to the north branch of the Chicago river, the cost of the improvement to be paid by special assessment. Various objections were urged in the circuit court to the preliminary proceeding: such as that the commissioners did not comply with the statute, by mailing proper notices to the owners of the premises assessed, etc., none of which, however, were tenable. The 5th instruction given by. the court at the request of appellee, was as follows:. “ The jury are instructed that by special benefits, is meant an increase in value of the premises assessed by reason of the improvement, over and above the general benefit to the public at large; and the question, therefore, in determining whether property has been benefited by an improvement, is whether its market value, after the improvement is made, is greater than it was before the improvement was made.” This instruction is erroneous, in not referring the cause of the increase in value to the making of the improvement. After defining correctly what is meant by a special benefit, as being one which is over and above the general benefit to the public at large, the instruction tells the jury that in determining whether property has been benefited by an improvement, the question is whether the market value of the property is greater after the improvement was made than it was before the making of the improvement. Its market value after the improvement was made, may have been very much greater than it was before, by reason of the general advance in property, in the city, or from other causes than the making of the improvement. The property may have even been lessened in value by the making of the improvement, and yet have been greater in value after the improvement was made, by reason of causes wholly disconnected from the making of the improvement. The instruction should have confined the increase in value to such as was caused by the making of the improvement. Objection is made to the action of the court in putting certain questions to the defendant’s witnesses, on the ground that the questions were put in a sarcastic and improper manner, and were calculated to prejudice the minds of the jury against the defendant. We cannot say that the questions were improper in substance ; nor are we able to determine by merely reading them, as they appear in the bill of exceptions, what was the tone or manner of the judge in propounding them. Remarks made by a judge during the progress of a trial indicating his opinion as to the weight of evidence introduced, or which are calculated to prejudice a party to the suit, is ground for reversal of the judgment. Deshler v. Beers, 32 Ill. 368. We are not justified in assuming from the mere statement of counsel, that the questions were put in an improper manner. For the error of the court in giving appellee’s fifth instruction, the judgment of the court below is reversed, and the cause remanded for a new trial. Reversed and remanded.