Bennett v. City of Marion

• Citation: 102 Iowa 425,71 N.W. 360
• Parties: BENNETT v. CITY OF MARION.
• Decision Date: 24 May 1897
• Court: United States State Supreme Court of Iowa

102 Iowa 425

71 N.W. 360

BENNETT

v.CITY OF MARION.

Supreme Court of Iowa.

May 24, 1897.

Appeal from superior court of Cedar Rapids; T. M. Giberson, Judge.

Action for damages, on account of the discharge of sewerage from the defendant city into Indian creek, which creek crosses plaintiff's land, whereby the water of said creek is polluted and made unfit for use, to plaintiff's damage. There was a verdict and judgment for plaintiff, from which the defendant appealed. Reversed.Richard A. Stuart and Jamison & Smyth, for appellant.

Rickel & Crocker, for appellee.

GRANGER, J.

A suit between these parties for the same cause was determined in the superior court in September, 1894, in which the jury found for the plaintiff in the sum of $300, and there was a special finding by the jury that the sewer as maintained was a nuisance. The plaintiff in this suit pleaded the judgment in that suit as a basis, as we understand, for exemplary damages in this suit, and the court instructed the jury that such damages might be awarded if the defendant, after such verdict and judgment, continued the flow from its sewer in wanton disregard of plaintiff's rights. The record presents the question if exemplary damages may be awarded against a municipal corporation. It may be conceded that the record in this case is such a one as would have fully warranted the instruction in a case where such damages are legally allowable. No case in this state is a direct authority on the subject. Such cases as Ogg v. City of Lansing, 35 Iowa, 495, and Vanhorn v. City of Des Moines, 63 Iowa, 447, 19 N. W. 293, in so far as they announce a principle touching the question, are against the right of such a recovery. While the rule of compensatory damages has been sustained against municipal and quasi municipal corporations in this state, and, in some cases, under very aggravated conditions, the right to exemplary damages against such corporations has not been thought a right. Mr. Dillon, in his work on Municipal Corporations (section 1020), says: “Actual damages only can, in general, be recovered. The case would be exceptional, indeed, when the plaintiff could properly recover vindictive, or more than compensatory, damages.” Mr. Sutherland, in his work on Damages (section 412), says, “Municipal corporations cannot be subjected to vindictive damages.” This is the well established rule in Illinois. City of Chicago v. Kelley, 69 Ill. 475. The same rule is announced in West Virginia....