Superior Const. Co. v. Elmo

• Decision Date: 29 April 1954
• Parties: SUPERIOR CONST. CO. v. ELMO et ux.
• Court: Maryland Court of Appeals

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204 Md. 1

104 A.2d 581

SUPERIOR CONST. CO. v. ELMO et ux.

Court of Appeals of Maryland.

April 29, 1954.

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W. Lee Harrison, Towson, (Michael Paul Smith, Towson, on the brief), for appellants.

Morris D. Hyman and Melvin J. Sykes, Baltimore (Melvin S. Silberg, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

In this case, the complainants sought and secured an injunction against further trespass to real property, as well as an award by the Chancellor of full compensatory damages, and of $1,000 as punitive damages. In an opinion heretofore filed, 102 A.2d 739, we affirmed the decree except as to the allowance of punitive damages, ordering reargument on that point.

It is conceded that the facts are such as would justify an award of punitive damages by a jury, if the case had been tried at law. The only question now to be determined is whether equity has inherent power to grant punitive damages, as incidental relief, as admittedly it has in case of compensatory awards. The Restatement, Torts, delineates the two. Compensatory damages are: '* * * the damages awarded to a person as compensation, indemnity or restitution for harm sustained by him.' (Section 903). Punitive damages are those: '* * * other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct.' (Section 908). Compensatory damages are

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recoverable not only where they can be measured precisely but where the trier of the facts must, to the best of ability, estimate the harm which the one wronged has suffered; for example, for pain and suffering. The amount of compensatory damages may reflect the motive of the wrong-doer, and where the motive is bad in law, be increased without changing its character and becoming punitive. If one is entitled to judgment for conversion of a chattel, he may recover compensatory damages greater than the value of the thing taken; for example, its market value as a product manufactured or improved by the taker. Restatement, Torts, Section 927.

The liability of an innocent taker of minerals from the land of another ordinarily is measured by the value of the thing taken 'in place'; that is to say, in the ground. The wilful pilferer must pay the value of the mineral when ready for market, or even the amount of the proceeds received by the wrong-doer, without recompense for the cost of labor and expenses. Mt. Savage George's Creek Coal Co. v. Monahan, 132 Md. 654, 104 A. 480, and cases cited; and Article 75, § 98, Code 1951. These enhanced damages are generally held to be compensatory, not punitive. In addition, where the trespass is wilful, punitive damages may be recovered also. Often, by statute, double or treble damages are made payable to a wronged one and such damages are hold to be punitive. Cross v. McClenahan, 54 Md. 21; Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct 1086, 90 L.Ed. 1332. Failure to distinguish between compensatory damages, although they take into account elements not susceptible of accurate measurement and may be enlarged because of motive or intentional violation of a legal duty, and true punitive damages, has caused some confusion as to what the cases have held, in that enlarged compensatory damages are either actually treated as, or later are thought to have been treated as, punitive. In the case at bar, there is no difficulty. Full compensatory damages were awarded. The extra $1,000 which the

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Chancellor awarded was intended as, labelled as, and admittedly is entirely punitive in character.

The appellees say that since, admittedly, equity may award compensatory damages as incidental relief, it is entirely reasonable, and consistent with established principles, that it grant full relief in a proper case by awarding punitive as well as compensatory damages. They admit that the weight of authority is against their position, but say that the cases upon analysis show such a lack of reason and logic as make their holdings without real weight, and not to be followed. The reply of the appellants is that, historically and consistently, equity has refused to enforce penalties or forfeitures, that punitive damages are concededly penal in nature and inconsistent with equitable principles, which are ex aequo et bono and so permit only what is just and right, with no element of vengeance or punishment. This they say is only another way of expressing the idea that equity seeks to compel restitution and not to punish. There can be no doubt that the courts of his country, when asked whether, without statutory permission, equity can award punitive damages, have answered overwhelmingly that it could not. It has been so held by the Supreme Court, various Circuit Courts of Appeal, including those of the Second and Fourth Circuits, the Courts of many States, including New York and New Jersey, and the Restatement. The cases are set out in the note below ¹. An early authority in this country is Bird v. Wilmigton

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and Manchester R. R. Co., 8 Rich.Eq., S.C., 46, 64 Am.Dec. 739. The Court held that an injunction would lie to restrain trespass to realty and that, as incidental relief compensatory damage could be awarded in equity, but it added: '* * * but the plaintiff by applying in this Court, waives all claim for vindictive damages; * * *' A number of cases through the years have cited the Bird case and used similar language as to waiver.

The appellees' criticism of these cases is that they are examples of: '* * * the growth of irrational and unthoughtout doctrines by uncritical repetition of what starts out as in the Bird case as a casual, off-hand statement unsupported by authority or by discussion of reasons.' They add that the statement that a plaintiff who applies to the equity court waives the right to punitive

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damages is: '* * * a classic of circular reasoning. It is a way of stating a result reached and not a reason for reaching it * * * merely another way of expressing the bare, unreasoned conclusion that equity should never award punitive damages.' However, it is to be supposed that the Court in the Bird case was relying not only on a prior Supreme Court case (Livingston v. Woodworth, 15 How. 546, 14 L.Ed. 809), where it was held that equity, because of its basic principles, would not award punitive damages, but also on the English rule. In Colburn v. Simms, 2 Hare 543, 67 Eng.Rep. 224, the Vice-Chancellor, Sir James Wigram, after stating that an injunction had been granted against the invasion of a copyright and that it was sought to compel delivery of the unlawful copies, said that he knew of no case in which this had been done and, that without statutory authorization, it could not be done. He added: '* * * the question suggests itself, whether a Court of Equity will afford any assistance in giving effect to a forfeiture, or, whether the parties ought not, so far as respects this claim, to be left to their remedies at law. The general rule undoubtedly is, that where a party seeking equitable relief is incidentally entitled to the benefit of a penalty or forfeiture, the Court requires him, as a condition of its assistance, to waive the penalty or forfeiture.' This statement of the law is supported by A Treatise on the Pleadings in Suits in the Court of Chancery, by English Bill--By John Mitford, Esq.--(Lord Redesdale) 4th Ed. pp. 195-287. Colburn v. Simms was decided in 1843. It was cited to the Supreme Court in Livingston v. Woodworth, supra, which in turn was decided in 1853. The Bird case was decided in 1855. Clearly, there was precedent for its refusal of punitive damages in equity both on the waiver theory and on general equitable principles. It may well be that the waiver originally required in express terms later came to be conclusively presumed by the virtue of the filing in equity of a claim on which punitive damages might be recovered at law. (See Story's Equity

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Jurisprudence, 14th Ed., Vol. 2, Sec. 1263) It is certainly clear that in the instant case, the complainants did not expect punitive damages at the time of the filing of the bill, since not only did they not ask for such damages but did not include a prayer for general relief. The damage prayer is this: 'That the Complainants be awarded some sums of money that would compensate them for the damages and deterioration and depreciation to the value of their property.' It is also worthy of note that the plaintiffs had a full and adequate alternative to relief in equity. Article 75, §§ 136-147, Code 1951, authorize the plaintiff, if the procedure specified be followed, to obtain in any action at law: '* * * an injunction forbidding the defendant to do, repeat or continue to do any act or acts that it is his duty to refrain from doing, either by contract or otherwise * * *.' The language of the various sections makes it clear that the injunction they authorize in law would have the force and effect of an injunction issued by a court of equity and that damages and costs would be recoverable as in an ordinary action at law. Poe, Pleading and Practice, Tiffany's Ed., Vol. 2, Sec. 334E. Certainly, if can be inferred with reason that a plaintiff, having a clear road which leads him to an injunction and desired punitive, as well as compensatory damages, who takes another road which leads him to the compensatory damages but not, in all reasonable probability, to the punitive damages, has waived the punitive damages. Particularly would this be so in a case where in terms he asked compensatory damages only. In the Wisconsin case of Karns v. Allen, 135 Wis. 48, 115 N.W. 357, the plaintiff had an election to sue at law or in equity, as in the present case. He chose to sue in equity and the Court said that thereby he had waived his right to exemplary damages to which he might have been entitled at law. Punitive damages may be waived at law, also. In 1909 the House of...