Claude v. Weaver Const. Co., No. 52890

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

Page 139

158 N.W.2d 139
261 Iowa 1225, 31 A.L.R.3d 1336
Gerald L. CLAUDE and Virginia G. Claude, Appellees,
v.
WEAVER CONSTRUCTION COMPANY, Appellant.
No. 52890.
Supreme Court of Iowa.
April 9, 1968.

[261 Iowa 1227]

Page 141

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

Page 142

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 [261 Iowa 1228] 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 [261 Iowa 1229] 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.

Page 143

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 [261 Iowa 1230] 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...

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38 practice notes
  • Stockdale v. Agrico Chemical Co., Div. of Con. Oil Co., Civ. No. 69-C-2010-C.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 21, 1972
    ...94, 100, 66 N.W.2d 841, 844; Syester v. Banta, 257 Iowa 613, 627, 133 N.W.2d 666, 675." And again in Claude v. Weaver Construction Co., 261 Iowa 1225, 158 N.W.2d 139, at page 144 "As heretofore indicated, it is well established in this jurisdiction, punitive damages cannot be allowed in the......
  • Pulla v. Amoco Oil Co., No. 4-91-CV-90085.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 9, 1994
    ...recognizing that its prior decisions in Northrup v. Miles Homes, Inc., 204 N.W.2d 850 (Iowa 1973), and Claude v. Weaver Construction Co., 261 Iowa 1225, 158 N.W.2d 139 (1968), had discussed a "scope of employment" rule, which required only that the employee's conduct be within the scope of ......
  • Young v. City of Des Moines, No. 2-58565
    • United States
    • United States State Supreme Court of Iowa
    • February 22, 1978
    ...purpose for allowance of punitive damages, sometimes referred to as "smart money", is articulated in Claude v. Weaver Construction Co., 261 Iowa 1225, 1229-1230, 158 N.W.2d 139, 143-144 Ordinarily, actual damage must be established as a condition precedent to an award of smart money. Holden......
  • Holden v. Construction Machinery Co., No. 55059
    • United States
    • United States State Supreme Court of Iowa
    • November 15, 1972
    ...actual damage must be established as a condition precedent to an allowance of punitive damages. See Claude v. Weaver Construction Co., 261 Iowa 1225, 1232, 158 N.W.2d 139 (1968); Golden Sun Feeds, Inc. v. Clark, 258 Iowa 678, 685, 140 N.W.2d 158 (1966). See generally Annots., 31 A.L.R.3d 13......
  • Request a trial to view additional results
38 cases
  • Stockdale v. Agrico Chemical Co., Div. of Con. Oil Co., Civ. No. 69-C-2010-C.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 21, 1972
    ...94, 100, 66 N.W.2d 841, 844; Syester v. Banta, 257 Iowa 613, 627, 133 N.W.2d 666, 675." And again in Claude v. Weaver Construction Co., 261 Iowa 1225, 158 N.W.2d 139, at page 144 "As heretofore indicated, it is well established in this jurisdiction, punitive damages cannot be allowed in the......
  • Pulla v. Amoco Oil Co., No. 4-91-CV-90085.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 9, 1994
    ...recognizing that its prior decisions in Northrup v. Miles Homes, Inc., 204 N.W.2d 850 (Iowa 1973), and Claude v. Weaver Construction Co., 261 Iowa 1225, 158 N.W.2d 139 (1968), had discussed a "scope of employment" rule, which required only that the employee's conduct be within the scope of ......
  • Young v. City of Des Moines, No. 2-58565
    • United States
    • United States State Supreme Court of Iowa
    • February 22, 1978
    ...purpose for allowance of punitive damages, sometimes referred to as "smart money", is articulated in Claude v. Weaver Construction Co., 261 Iowa 1225, 1229-1230, 158 N.W.2d 139, 143-144 Ordinarily, actual damage must be established as a condition precedent to an award of smart money. Holden......
  • Holden v. Construction Machinery Co., No. 55059
    • United States
    • United States State Supreme Court of Iowa
    • November 15, 1972
    ...actual damage must be established as a condition precedent to an allowance of punitive damages. See Claude v. Weaver Construction Co., 261 Iowa 1225, 1232, 158 N.W.2d 139 (1968); Golden Sun Feeds, Inc. v. Clark, 258 Iowa 678, 685, 140 N.W.2d 158 (1966). See generally Annots., 31 A.L.R.3d 13......
  • Request a trial to view additional results

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