Claude v. Weaver Const. Co.

Citation261 Iowa 1225,158 N.W.2d 139
Decision Date09 April 1968
Docket NumberNo. 52890,52890
Parties, 31 A.L.R.3d 1336 Gerald L. CLAUDE and Virginia G. Claude, Appellees, v. WEAVER CONSTRUCTION COMPANY, Appellant.
CourtUnited States State Supreme Court of Iowa

Oppen & Wessels, Iowa Falls, and Lundy, Butler, Wilson & Hall, Eldora, for appellant.

Whitesell Law Firm, Iowa Falls, for appellees.

RAWLINGS, Justice.

Action at law by homeowner plaintiffs for damages resulting from private nuisance created by defendant operated asphalt plant resulted in judgment on verdict adverse to defendant, and it appeals. We affirm.

Defendant is a closely held family type corporation, Wood Weaver, sometimes hereafter referred to as Weaver, being the president.

About 1945, defendant acquired by lease a relatively small limestone quarry located east of property later purchased by plaintiffs, the two tracts being separated by a county road. Size of the quarry has since been substantially increased.

November 4, 1957, plaintiffs purchased and commenced occupancy of a house located on land situated at the easterly edge of the town of Alden.

April 1966, an oil burning auxiliary asphalt plant or pug mill was set up in the quarry at direction of defendant to assist it in a highway 69 resurfacing project. This plant was located on the west side of the quarry about one or two city blocks from the Claude home.

Plaintiffs claim offensive dust and smoke from the subject mill caused injury to them and their property.

Trial to jury resulted in an award of damages to plaintiffs, $500 compensatory and $1100 exemplary.

The sole issue presented on appeal is whether evidence presented was sufficient to generate a jury issue as to punitive damages.

I. This being an action at law it is reviewable only on errors assigned. Rule 344(a)(3), R.C.P., and Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447, 450.

Errors neither assigned nor argued on appeal present no question for review. Associates Discount Corp. v. Held, 255 Iowa 680, 683--684, 123 N.W.2d 869.

II. While there must be some substantial evidence on which to base an instruction, all relative and material evidence, including justifiable inferences, favorable to plaintiff, must be accepted at face value in determining whether a jury issue is created. Nizzi v. Laverty Sprayers, Inc., Iowa, 143 N.W.2d 312, 317; Kiger v. Meehan, 253 Iowa 746, 748, 113 N.W.2d 743; Kuehn v. Jenkins, 251 Iowa 718, 724, 100 N.W.2d 610; McGrean v. Bos Freight Lines, 240 Iowa 318, 323, 36 N.W.2d 374; and Sanderson v. Chicago, M. & S.P.R. Co., 167 Iowa 90, 101, 149 N.W. 188.

Our function is not to weigh the testimony, but to determine whether there was substantial evidence presented upon which a jury could find for plaintiffs on their claim for punitive damages. In that regard we view the evidence in a light most favorable to the party prevailing in the trial court. Rule 344(f) (1), (2), R.C.P., and Jennings v. Farmers Mutual Insurance Association, 260 Iowa 279, 149 N.W.2d 298, 300.

III. As previously stated, plaintiffs were awarded actual damages resulting from presence of the private nuisance created by defendant operated asphalt plant.

With reference to the foregoing, this court said in Bates v. Quality Ready-Mix Co., Iowa, 154 N.W.2d 852, 857: 'The term 'private nuisance' refers to an actionable interference with a person's interest in the private use and enjoyment of his land.' See also Jones v. Rumford, 64 Wash.2d 559, 392 P.2d 808, 809--810; 66 C.J.S. Nuisances § 2, page 730; 39 Am.Jur., Nuisances, section 9, page 287; 12 Drake L. Rev. 107; and Annos. 47 A.L.R.2d 490. See generally Kellerhals v. Kallenberger, 251 Iowa 974, 979--982, 103 N.W.2d 691, and Riter v. Keokuk Electro-Metals Co., 248 Iowa 710, 720--725, 82 N.W.2d 151.

Touching on the matter at hand we held, in Iverson v. Vint, 243 Iowa 949, 952, 54 N.W.2d 494, an action for damages from nuisance is not predicated on negligence. It is a condition, not an act or failure to act. If the wrongful condition exists, the person responsible for its existence is liable for resulting damage to others. See also 12 Drake L. Rev. 108.

Since judgment entered on the compensatory award is not challenged, it stands as a finality from which it follows existence of a nuisance as alleged was here established. See Johnson v. Iowa State Highway Commission, 257 Iowa 810, 812, 134 N.W.2d 916, and 5 C.J.S. Appeal & Error § 1272, page 163, 168--169.

Furthermore, actual compensation allowed must, under the circumstances, be accepted as reasonable and proper.

IV. This brings us to the matter of exemplary or punitive damages.

Dealing with that subject we said in Sebastian v. Wood, 246 Iowa 94, 100--101, 66 N.W.2d 841, 844: 'A reference to the nature of exemptlary or punitive damages, sometimes designated as 'smart money', and the purposes of their allowance may be helpful. Their main purpose as indicated in their designation is that they are awarded under proper circumstances and conditions as a punishment for the particular party involved and as a warning and an example to him in the future, and to all others who may offend in like manner. The award of such damages constitutes an effective deterrent to such offenders, and a salutary protection to society and the public in general. They are not recoverable as a matter of right and are only incidental to the main cause of action, and can be awarded only when actual and substantial damages are allowed. They are in no way compensatory, and while they have a secondary purpose in adding to the complainant's award because injury to him may well have been aggravated by its malicious, oppressive, willful, wanton, or reckless causation, yet, whatever benefit he so receives comes to him not as compensation for the wrong done him but as purely incidental and by the grace and gratuity of the law, as punishment of the wrongdoer, and as an example and deterrent to others.'

With regard to the foregoing see also Legal Seminar, Iowa Academy of Trial Lawyers, October 1963, page 71; Prosser, Law of Torts, Third Ed., Hornbook Series, page 9; 25 C.J.S. Damages § 117(1), page 1107; and 22 Am.Jur.2d, Damages, sections 236--237, pages 322--325.

V. Always troublesome is that element essential to an award of punitive damages commonly referred to as 'malice'. In fact, some authorities look upon its usage in connection with the subject here presented as a misnomer.

This was demonstrated in Amos v. Prom, D.C., 115 F.Supp. 127, 135--136, where the court said: 'There has been some confusion in the discussion of this term (malice) in the Iowa cases, but basically Iowa law has recognized three terms for malice. First there is malice in the popular sense of ill will or hatred, sometimes termed 'express malice.' Second there is 'malice in fact.' Third there is 'malice in law.' The confusion arises primarily because the latter two terms are both characterized as 'legal malice' as distinguished from 'express' or 'lay' malice. The distinction has been stated by the Iowa Supreme Court, speaking through Justice McClain, as 'Malice in law is where malice is established by legal presumption from proof of certain facts, as in actions for libel * * *. Malice in fact is to be found by the jury from the evidence in the case. They may infer it from want of probable cause. But it is well established that the plaintiff is not required to prove express malice, in the popular signification of the term, as that defendant was prompted by malevolence, or acted from motives of ill will, resentment, or hatred toward the plaintiff. It is sufficient if he prove it in its enlarged legal sense.' Connelly v. White, supra (122 Iowa 391, 98 N.W. 145).

' The Iowa Supreme Court recently referred to the categories of malice in the case of Robinson v. Home Fire & Marine Ins. Co., Iowa 1953, 59 N.W.2d 776. The Court in that case held that slander was not proved where the speaker had a qualified privilege unless the words were spoken with actual malice. At page 782 of 59 N.W.2d, the Court said, 'Actual malice--frequently called express malice or malice in fact--means personal spite, hatred or ill-will. It is not merely malice in law--the intentional doing of a wrongful act without just cause or excuse.'

'While it is not entirely clear whether the Iowa decisions regard 'malice in fact' as a descriptive term for 'legal malice' or as a synonym for 'express malice,' it is apparent that the 'malice' required to permit an award of exemplary damages is something less than actual ill-will or express malice and may be termed 'legal malice' for want of a better expression.'

Continuing the court said, loc. cit., 136--137: '* * * the intentional doing of a 'wrongful act' without justification will permit an inference of the wicked state of mind. Yet it is apparent that many wrongful or illegal acts may be intentionally committed from motives wholly apart from any malice or evil intent directed toward the person who happens to suffer by the action, as where defendant is motiviated by a desire for gain and has no feeling at all for those injured by him.

'Therefore, when the law reaches this last stage, as it has in Iowa, it is no longer 'malice' which is required but the 'something else' from which malice is said to be presumed. See Schnathorst v. Williams, 1949, 240 Iowa 561, 36 N.W.2d 739, 10 A.L.R.2d 1199; Wilson v. Lapham, 1923, 196 Iowa 745, 195 N.W. 235; Jenkins v. Gilligan, 1906, 131 Iowa 176, 108 N.W. 237, 9 L.R.A.,N.S., 1087. 'It is enough (for legal malice) if it be the result of any improper or sinister motive and in disregard of the rights of others.' 108 N.W. at page 238. The rule would seem to be: exemplary damages may be awarded where defendant acts maliciously, but malice may be inferred where defendant's act is illegal or improper; where the nature of the illegal act is such as to negative any inference of feeling toward the person injured, and is in fact consistent with a complete indifference on the part of defendant,...

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