DeSalme v. Union Electric Light & Power Co.

• Citation: 102 S.W.2d 779,232 Mo.App. 245
• Parties: R. C. DeSALME and LUCILLE DeSALME (PLAINTIFFS), RESPONDENTS, v. UNION ELECTRIC LIGHT & POWER COMPANY, A CORPORATION (DEFENDANT), APPELLANT, DUDLEY SANFORD and THOMAS HIGGINS, DEFENDANTS
• Decision Date: 02 March 1937
• Court: Court of Appeal of Missouri (US)

102 S.W.2d 779

232 Mo.App. 245

R. C. DeSALME and LUCILLE DeSALME (PLAINTIFFS), RESPONDENTS, v. UNION ELECTRIC LIGHT & POWER COMPANY, A CORPORATION (DEFENDANT), APPELLANT, DUDLEY SANFORD and THOMAS HIGGINS, DEFENDANTS

Court of Appeals of Missouri, St. Louis

March 2, 1937

Appeal from the Circuit Court of St. Louis County.--Hon. John A Witthaus, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

E. McD. Stevens for respondents.

(1) Rental value. (a) Where the loss of use is temporary, rental value is recoverable instead of the difference in the value of the land. Adam v. Ry., 139 Mo. App., l. c. 207. The above case was cited approval by the Supreme Court in Blankenship v. Kansas Explorations, 325 Mo., l. c 1014. Knight v. Chicago Ry., 122 Mo.App. 38. (b) Rental value, as applied to realty, is the value of the use of land for any purpose for which it is adapted in the hands of a prudent and discreet occupant upon a judicious system of husbandry; that amount, which, in the ordinary course of business, the premises would bring or for which they could be rented, or the value as ascertained by proof of what the premises would rent for. Leuk v. Tritz, 94 Iowa 322 l. c. 325; Nelson v. Minn. Ry., 41 Minn. 131, l. c. 132; Ford Motor Co. v. Minn., 41 Minn. 211, l. c. 215; Williams v. Haile, 85 S.C. 1 (66 S.E. 117, l. c. 118); Knight v. Chicago Ry., 122 Mo.App. 38; Goelet v. National Surety Co., 249 N.Y. 287; Rumsey v. N. Y. & N.E. R. R., 136 N.Y. 543. (c) What the premises would rent or are adapted for. Reeves v. Romines, 132 Ark. 599; Brewington v. Hart, 150 N.C. 269, l. c. 275; Martin v. Clegg, 163 N.C. 528; Willis v. Perry, 92 Iowa 297, l. c. 307-8; Cap Garage v. Powell, 98 Vt. 303, l. c. 307. (d) Where the injury is due to a continuing wrong, but is temporary, the measure of damages is not the diminution of the value of the land but the diminution in its rental value for any purpose for which it is adaptable. Krebs v. Construction Co., 114 Mo.App. 649; Ready v. Mo. P. Ry., 98 Mo., l. c. 470; Foncannon v. Kirksville, 88 Mo.App. 279; Birmingham Water Wks. v. Martini, 2 Ala.App. 652, l. c. 657; K. C. v. Cook, 57 Ark. 387, l. c. 398; Gulf v. Roberts (Tex.), 86 S.W. 1052; Canteen v. Schwartz, 128 Ill.App. 224, l. c. 226. (e) The term "rental value" is but another form of saying the "value of the use." Any attempt to make one expression mean more than the other is a mere play upon words. They mean substantially the same thing. As used to measure damage, it is deemed to be the equivalent of actual damages in its legal signification. Straight Bros. v. C. R. Co., 183 Iowa 943; Goelet v. Nat. Surety, 249 N.Y. 287; Brewington v. Loughran, 183 N.C. 565. (f) Respondent is entitled to recover upon the basis of the availability of the land for its most valuable use. Salstrom v. Orleans, 153 Cal. 551; Barker v. Publishers (N.H.), 103 Mo.App. 757, l. c. 759; Chase v. Hoosac, 85 Vt. 60. (2) Recovery may be had for diminution in the rental value of property although the premises are occupied by the owner himself, and are not held for rental purposes. Woolsey v. N. Y., 9 N.Y.S. 133; Braken v. Minn. R., 31 Minn. 45; Kearney v. Met. N. Y. S., 129 N.Y. 76; Francis v. Schoelkopff, 53 N.Y. 152; Michel v. Board, 39 Hun. 47. (3) The petition is sufficient to authorize a judgment for more than nominal damages even though all reference to rental value be stricken out. Hesse v. L. H. & P. Co., 160 Mo., l. c. 434-5. (4) Defendant's instruction numbered 4 (Abs. 128) properly instructed the jury, that, "if while plaintiffs were receiving electric service, current was being diverted so that same did not pass through or register on the meter, then it had a right to disconnect the service," correctly presented defendant's theory and defense there was no need to give its instruction number 11 (Abs. 132) because it in effect submitted the same proposition.

A. E. L. Gardner and Thomas Bond for appellant.

(1) Plaintiffs were not entitled to recover alleged depreciation in rental value of their real estate. (a) Because under the facts of this case said depreciation, if any, is not a recoverable item of actual damage. Chambers v. Spruce Lighting Co. (W. Va.), 95 S.E. 192, syl. 3, l. c. 194, column 2; Birmingham L. & P. Co. v. Littleton (Ala.), 77 So. 565, 567, 568; 20 C. J., pages 339 and 340. (b) Because same was speculative and remote. Clifford v. Leroux (Tex.), 37 S.W. 172. (c) Because the alleged discrimination, to-wit, refusal to serve, was personal to the plaintiffs. There was no evidence of any intent to deny service to a tenant, and, therefore, no damage to rental value. Report of P. S. C., Plaintiffs Exhibit B, Abstract pp. 22-30; Order of P. S. C., Plaintiffs' Exhibit B, Abstract pp. 31, 32; 51 C. J., p. 7, sec. 16, para. 2; R. S. Mo. 1929, sec. 5187, para. 3; Testimony Julia Lee, Abstract p. 77; Testimony Dudley Sanford, Abstract p. 112. (d) Because during the entire period in question plaintiffs occupied the place as a home, and lost no rents. (2) Plaintiffs are limited in their recovery to the damages claimed in their petition. Carter v. Shotwell, 42 Mo.App. 663, l. c. 665, 666; Reed v. Crane, 89 Mo.App. 670, l. c. 679. (3) Where a legal wrong is established, and plaintiffs fail to plead or prove any item of substantial damages legally recoverable, they can only recover nominal damages. 17 C. J., pp. 720-723; Western Union Telegraph Co. v. Lawson, 66 Kans. 660, l. c. 662, 72 P. 283, l. c. 284; Mayer v. Wilson, 139 Cal. 514 (73 P. 418); Swain v. Louisiana L. & P. Co., 128 So. 538. (4) Defendant had a right to disconnect service if any device which prevented the meter from registering was "found" on the plaintiffs' premises, and defendant's instruction No. 11 ought to have been given. Rule on file with P. S. C., Defendant's Exhibit No. 9; State ex rel. St. Louis Co. Gas Co. v. P. S. C., 315 Mo. 312, l. c. 317. (5) There was no substantial evidence of malice, and, therefore, the court should have instructed the jury that plaintiffs were not entitled to recover punitive damages. Ferguson v. Mo. P. R. R. Co. (Mo.), 177 S.W. 616, l. c. 618; Hall v. St. L. S. F. Ry. Co., 224 Mo.App. 431, l. c. 439; Bean v. Branson, 217 Mo.App. 399, l. c. 408, 409. (6) The issue of punitive damages, if in the case, was correctly tried and determined by the jury, and if the case is remanded, the retrial should be limited to the issue of actual damages. Bramblett v. Harlow (Mo. App.), 75 S.W.2d 626, syl. 17, and l. c. 633; Oberbeck v. Mayer, 59 Mo.App. 289, syl. 6, and l. c. 297, 298; McLure v. National Bank of Commerce, 252 Mo. 510, l. c. 524; Schroeder v. Edwards, 267 Mo. 459, syll. 8, l. c. 486; Home Ins. Co. v. Woods, 274 S.W. 520; Paddock-Hawley Iron Co. v. Graham, 48 Mo.App. 638, syll. 4; Denny v. Guyton, 327 Mo. 1030, syll. 23, l. c. 1094-5; Barr v. Nafziger, 328 Mo. 423; Sandry v. Hines, 246 S.W. 641; Commerce T. and S. Bank v. Schuler, 27 S.W.2d 492, l. c. 495; 4 C. J. 1194.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.--

This is an action for the damages sustained by plaintiffs by reason of defendant's alleged wrongful discontinuance of electric service to them. The verdict of the jury was for plaintiffs for actual damages of $ 2,475 and punitive damages of $ 1; and from the judgment rendered in conformity therewith, defendant's appeal to this court has been perfected in the usual course.

Plaintiffs are the owners of a tract of land located at the junction of Saline and Gravois roads in St. Louis county, the same being improved by a frame house, a garage, and a shed originally used as a blacksmith shop. Since the time of their purchase of the property plaintiffs have continuously made use of it as a residence except for certain periods in the winter months when they have temporarily occupied a furnished apartment in the city.

In the early part of 1927 one of the power lines of defendant Union Electric Light & Power Company was built out to the vicinity of plaintiffs' property, whereupon plaintiffs contracted with defendant for the running of an extension into their property so as to permit them to receive electric service. It appears that under the terms of such agreement plaintiffs deposited with defendant the sum of $ 201.25 as a portion of the cost of making the connection, but with the understanding that such deposit would be subsequently refunded to them as other new customers should begin to receive service from the extension.

On April 27, 1927, defendant began supplying electric service to plaintiffs under the agreement aforesaid, and continued the same without interruption or complaint for one month, or until the following May 27th, when some difficulty arose at the time of the second reading of the meter. Defendant's evidence was that its meter reader, one Thomas Higgins, found a "jumper" or device attached to the terminals of the meter in such a manner as to prevent the registering of the current used by plaintiffs, and that upon his report to defendant of what he had found the latter discontinued the service after having first given plaintiffs the usual notice by registered mail. Plaintiffs for their part strenuously denied the truth of Higgins' report except as to the fact that either he or some other employee of defendant had come to their home on the occasion in question for the purpose of making the customary reading of the meter.

Defendant argues that inasmuch as Higgins bore a good reputation with the company and had no apparent reason to have wished to do plaintiffs an injustice, it was entitled to rely upon his report and to take the position, as it did, that unless plaintiffs would pay the estimated cost of the unmetered current and the cost of the installation of a lock box for subsequent...