Franz v. Hilterbrand

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: Franz v. Hilterbrand, 45 Mo. 121 (Mo. 1869)
• Decision Date: 31 October 1869
• Parties: GEORGE FRANZ, Plaintiff in Error, v. PHILIP HILTERBRAND et al., Defendants in Error.

45 Mo. 121

GEORGE FRANZ, Plaintiff in Error,

v.PHILIP HILTERBRAND et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1869.

Error to Second District Court.

S. N. Taylor, for plaintiff in error.

I. The first and second instructions given for plaintiff were warranted by the evidence, and were proper. (Goetz v. Ambs, 27 Mo. 28; Best et al. v. Allen, 30 Ill. 30; Hawk et al. v. Ridgway, 33 Ill. 473; Major v. Pullman, 3 Dana, 582; Treat v. Barker, 7 Conn. 274; Board v. Head, 3 Dana, 489; Ingalls v. Bills, 9 Met. 1; Duncan v. Stalcup, 1 Dev. 440.)

II. In actions of trespass and tort, the principles of law sustain the giving of exemplary damages or smart money, and courts will not disturb the verdict of the jury unless the damages are so excessive that at first blush they strike all as being so. (Huckle v. Mooney, 2 Wilson, 205; Major v. Pullman, supra; Dennison v. Hyde, 6 Conn. 508; Goetz v. Ambs, supra; Somer v. Wilt, 4 S. & R. 19; Whipple v. Walpole, 10 N. H. 130; Wort v. Jenkins, 14 Johns. 351

Green & Thomas, for defendants in error.

There was no evidence in the case to warrant instructions to give exemplary damages. (Milburn v. Beach, 14 Mo. 104; Walker v. Borland, 21 Mo. 289; Frank v. Dillon, 21 Mo. 294; Harrison v. Cachelin, 27 Mo. 26; id. 55; Sedgw. on Dam. 527, and authorities there cited; Kennedy v. North Mo. R.R. Co., 36 Mo. 351.)WAGNER, Judge, delivered the opinion of the court.

The only question material to notice in this case is the action of the Circuit Court in giving instructions relating to the measure of damages. The plaintiff owned two diseased horses, which he worked on his farm. The defendants, and others residing in the neighborhood, believed the horses had what is known as the glanders, a disease which they apprehended as contagious and incurable; and to prevent its spreading and doing injury, they went to plaintiff's premises and killed the horses. There was no evidence of anything like malice in their action, but they proceeded on the mistaken view that they had the right to enter the plaintiff's premises and abate what they considered a nuisance, and which, if left, might do great harm. They acted from good, but mistaken and unjustifiable, motives. The court instructed the jury for the plaintiff, that if they found from the evidence that defendants killed his horses without his consent or authority, the jury should find for him and assess his damages at the value of the horses, and in addition thereto they might allow such further sum for exemplary damages or smart money as, under all the facts and circumstances in the case, they might deem right, not exceeding the amount claimed in the petition; and that, to entitle the plaintiff to exemplary damages or smart money, it was not necessary to show that defendants had ill-will and hostility towards him, or exercised the same in killing his horses, but if they killed the horses without the authority of the plaintiff, willfully, deliberately, or intentionally, then the idea of punishment was introduced, and exemplary damages or smart money could be awarded. Under this direction of the court, the jury found for the plaintiff, and assessed his damages at three hundred dollars as the value of the horses, and two hundred dollars additional as punitory or vindictive damages. Judgment was entered on the verdict for five hundred dollars, the defendants appealed to the District Court, where a reversal was had, and the plaintiff prosecutes his writ of error. The language of the instruction which is complained of, and which it is claimed misled the jury into giving excessive damages, is copied almost literally from the opinion delivered in the case of Goetz v. Ambs, 27 Mo. 28. As a proposition of law it is unobjectionable. But it is a misdirection and wrong practice to give instructions, no matter how correct they may be abstractly, if the evidence in the particular case does not warrant or justify them. The theory of the law in regard to damages proceeds upon the principle that compensation for the actual loss sustained is the object sought. Where there are no circumstances of aggravation, the damages should be compensatory only. Where, however, the act is aggravated, and where there has been fraud, oppression, malice, or gross negligence, a different rule is adopted, and the jury is allowed to award exemplary damages, not only to compensate the sufferer, but also to punish the offender. (Sedgw. on Dam., 2d ed., pp. 38, 57; Milburn v. Beach, 14 Mo. 104; Walker v. Borland, 21 Mo. 289; Kennedy v. N. M. R.R. Co., 36 Mo. 351.) In a case...