Chappell v. City of Springfield

• Decision Date: 12 February 1968
• Docket Number: No. 2,No. 52229,52229,2
• Citation: 423 S.W.2d 810
• Parties: Fred S. CHAPPELL and Edna E. Chappell, husband and wife, Emerson and Helen M. Taylor, husband and wife, John and Vivian Jackson, husband and wife, Bessie Hutchinson, a single person, and Charles and Ruth V. Hutchinson, husband and wife, Appellants, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Respondent
• Court: Missouri Supreme Court

Page 810

423 S.W.2d 810

Fred S. CHAPPELL and Edna E. Chappell, husband and wife Emerson and Helen M. Taylor, husband and wife, John and Vivian Jackson, husband and wife, Bessie Hutchinson, a single person, and Charles and Ruth V. Hutchinson, husband and wife, Appellants, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation Respondent.

No. 52229.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

White & Dickey, Turner White, Springfield, Theodore G. Scott, Buffalo, Lincoln, Haseltine, Forehand & Springer, Horace S. Haseltine, Carl E. Yates, Springfield, for appellants-plaintiffs.

John B. Newberry, Springfield, for defendant-respondent.

STOCKARD, Commissioner.

This appeal arises from the trial of two consolidated actions in each of which the plaintiffs by their Count I sought actual damages from the City of Springfield for the operation of a nuisance in connection with its sewage disposal plant, and by their Count II sought punitive damages for the willful and malicious failure of the city to abate the nuisance. The trial court directed a verdict against plaintiffs on Count II. A jury trial as to Count I resulted in a verdict in favor of plaintiffs in the aggregate amount of $20,000. The plaintiffs filed a motion for new trial as to Count II, and the city filed a motion for new trial as to Count I. The trial court entered this order: 'Defendant's motion for new trial sustained on grounds of error in plaintiffs' verdict directing instruction and damage instruction.' Plaintiffs' motion for new trial as to Count II was overruled by operation of law at the end of ninety days. Plaintiffs have appealed from the order granting a new trial as to Count I, and also from the order directing a verdict as to Count II.

Plaintiffs assert that the trial court's order granting a new trial failed to comply with Civil Rule 78.01, V.A.M.R., in that it failed to 'specify of record the ground or grounds on which said new trial is granted.' Plaintiffs' verdict directing instruction was Instruction 3, and the damage instruction was Instruction 4. Both instructions were challenged in the City's motion for new trial. We think the trial court's order did fail to specify the grounds on which the new trial was granted within the meaning and intent of Civil Rule 78.01, V.A.M.R., However, Civil Rule 83.06, V.A.M.R., provides that when a trial court grants a new trial without specifying of record the ground or grounds therefor, the presumption shall be that the trial court erroneously granted the motion and the burden of supporting the court's action is placed on the respondent. Provision is made in this situation that the appellant may, by filing timely demand, require the respondent to file the original brief. Plaintiffs did not avail themselves of that procedure in this case. In its brief the city accepts the burden of supporting the trial court's action in granting a new trial.

The city asserts that Instruction 3 was erroneous because it submitted in the disjunctive that the city 'permitted vile odors to escape from its sewage disposal plant or sludge beds, sludge lagoons, sludge trucks, or deposits of sludge on and off its plant' when the 'record is totally lacking in any evidence that the city * * * had ever used a sludge bed, or that it had ever used a sludge lagoon, or that its sludge trucks in any way caused an odor.' The city also asserts that Instruction 4 was erroneous because it was 'purportedly taken from the Missouri Approved Instructions,' MAI 4.01, but that the last phrase of the form of that instruction was left out. These challenges to the instuctions were included in the assignment of errors in the city's motion for new trial. Such errors, if they exist, are errors of law, and do not constitute a discretionary basis for the granting of a new trial.

In view of the fact that the order granting a new trial must be affirmed because of the error in Instruction 4, we need not on this appeal rule the alleged error attributed to Instruction 3. The language of Instruction 3, as such, is not challenged. The only assertion of error is that portions of the disjunctive submission are not supported by evidence. If that is true, the evidence at the new trial may be sufficient, or plaintiffs may elect not to include some of the submissions now contained in the instruction.

We turn now to Instruction 4, which was as follows:

'If you find the issues in favor of the plaintiffs on one or more of plaintiffs' claims, then you must award such plaintiffs such sum or sums as you believe will fairly and justly compensate such plaintiffs for any damages you believe they sustained. (MAI No. 4.01 Modified).'

Following the word 'sustained,' as set out above in Instruction 4, MAI No. 4 contains the words, 'as a direct result of the occurrence mentioned in the evidence.' This qualifying phrase was left out (plaintiffs say unintentionally) of Instruction 4 as given to the jury. The city contends that this omission was prejudicial error because it permitted the jury to allow damages 'for anything the jury believed they (the plaintiffs) might have sustained, whether such damages were a result of the occurrences mentioned in evidence or not.'

Plaintiffs argue that this 'technical error' in Instruction 4 was not prejudicial because in Instruction 3, plaintiffs' verdict directing instruction, the fourth required finding was as follows: 'Fourth, as a direct result thereof, plaintiffs sustained damage.' However, we conclude that this case is governed and ruled by Brown v. St. Louis Public Service Company, Mo., 421 S.W.2d 255, a decision by this court enbanc. There, the phrase omitted in this case was included in the instruction, but in that phrase the word 'direct' before the word 'result' was omitted. Such omission was held to constitute prejudicial error, and the order granting a new trial was affirmed. As to the contention made by plaintiffs that the fourth clause of Instruction 3 prevented the omission of the phrase from being prejudicial, this court in the Brown case ruled as follows: 'Likewise, we overrule plaintiffs' contention that the absence of the word 'direct' in Instruction No. 6 is harmless error in view of the fact that Instruction No. 2, which was plaintiff's verdict-directing instruction, required the jury to find that plaintiff sustained damages as a direct result of defendant's negligence. In effect, a conflict between Instruction No. 2 and Instruction No. 6 was created.' Instruction 4 in the pending case authorized the jury to award to plaintiffs 'any damages you believe they sustained,' and without the omitted qualifying phrase that is an erroneous measurement of damages.

Assuming the fourth required finding of Instruction 3 presented to the jury the proper measurement of damages, as contended by plaintiffs, then as was true in the Brown case a conflict was created. If it did not, the erroneous declaration in Instruction 4 remained unqualified. In either event, based on the ruling of the Brown case, the error was prejudicial and the trial court correctly granted a new trial for this reason.

Plaintiffs contend that in the event the order granting a new trial as to Count I is affirmed, they should be entitled to a new trial on Count II pertaining to punitive damages. It is doubtful that the evidence would authorize a finding of willful, wanton, malicious failure on the part of the city to abate the nuisance, but it is not necessary that we so rule. Even if the evidence in the record before us is not sufficient, since there must be a new trial as to Count I, it could be contended that the evidence on that new trial might authorize the submission of the issue of punitive damages, and therefore we should authorize a new trial as to Count II. However, to do this would at least indicate that this court considers punitive damages to be recoverable, when authorized by the evidence, against a municipality.

It is the general rule that in the absence of a statute specifically authorizing such recovery, punitive or exemplary damages are not recoverable against a municipal corporation. Bennett v. City of Marion, 102 Iowa 425, 71 N.W. 360, 63 Am.St.Rep. 454; City of Chicago v. Langlass, 52 Ill. 256, 4 Am.Rep. 603; Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419; Wilson v. City of Wheeling, 19 W.Va. 323, 42 Am.Rep. 780; Fisher v. City of Miami, Fla., 172 So.2d 455; Brown v. Deming, 56 N.M. 302, 243 P.2d 609; Rascoe v. Town of Farmington, 62 N.M. 51, 304 P.2d 575; Clarke v. City of Greer, 231 S.C. 327, 98 S.E.2d 751; Raplee v. City of Corning, 6 A.D.2d 230, 176 N.Y.S.2d 162; Michaud v. Bangor, 160 Me. 285, 203 A.2d 687; Desforge v. City of West St. Paul, 231 Minn. 205, 42 N.W.2d 633, 19 A.L.R.2d 898; McManus v. City of Madison Heights, 366 Mich. 26, 113 N.W.2d 889; Annotation 19 A.L.R.2d 903; Morris, Punitive...