Greeney v. Pennsylvania Water Co.

• Decision Date: 09 October 1905
• Docket Number: 124-1905
• Citation: 29 Pa.Super. 136
• Parties: Greeney v. Pennsylvania Water Company, Appellant
• Court: Pennsylvania Superior Court

29 Pa.Super. 136

Greeney v. Pennsylvania Water Company, Appellant

No. 124-1905

Superior Court of Pennsylvania

October 9, 1905

Argued April 11, 1905

Appeal by defendant, from judgment of C.P. No. 3, Allegheny Co Aug. T., 1903, No. 76, on verdict for plaintiff in case of Margaret Greeney v. Pennsylvania Water Company.

Trespass to recover damages for injuries to land. Before Evans, J.

The facts are stated in the opinion of the Superior Court.

The court charged in part as follows:

[But in addition to the damages by way of compensation, if you find that this trespass was a deliberate and willful act upon the part of this defendant company, done with a wanton disregard of the rights of the plaintiff, continued in with full knowledge on their part as to what they were doing, then in addition to the damages by way of compensation, making her whole for the injury which she suffered, you can given punitive damages, damages for the purpose of punishing the defendant for his willful and deliberate trespass on its part; and it is given for the purpose of deterring the defendant from committing this trespass, if you find that there is one there. That is the purpose; not for compensation, but to punish the defendant for its willful deliberate act. If you find that this act has been such a wanton act on its part, willful and deliberate and continued for a long period of time, you would be justified in giving punitive damages in addition to the damages by way of compensation.]

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Errors assigned were above instructions, quoting it; in not holding upon the pleadings and facts in this case, that under the law, the extent of plaintiff's recovery would be limited to compensation for the injuries sustained; in not limiting or defining the amount of vindictive damages which might be assessed against the defendant.

Affirmed.

A. W. Duff, with him H. E. Carmack, for appellant. -- Under the pleading in this case, the court erred in instructing the jury that they could give exemplary damages: Lynch v. Troxell, 207 Pa. 162; Welsh v. Stewart, 31 Mo.App. 376; Doss v. R. R. Co., 59 Mo. 27; McKeon v. Ry. Co., 42 Mo. 79; International, etc., R. R. Co. v. Garcia, 70 Tex. 207 (7 S.W. 802); Samuels v. Richmond, etc., R. R. Co., 35 S.C. 493 (14 S.E. 943); Sullivan v. Oregon Ry. & Nav. Co., 12 Ore. 392 (7 P. 508); Kennedy v. Erdman, 150 Pa. 427; Mellick v. R. R. Co., 17 Pa.Super. 12.

To justify exemplary damages, there must be evidence of gross negligence amounting to recklessness or indifference to the dangers and consequences to others: Mo. P. Ry. Co. v. Shuford, 72 Tex. 165 (10 S.W. 408); Philadelphia Traction Co. v. Orbann, 119 Pa. 37; Huling v. Henderson, 161 Pa. 553; McCarthy v. DeArmit, 99 Pa. 63; Rose v. Story, 1 Pa. 190; Amer v. Longstreth, 10 Pa. 145; Forsyth v. Wells, 41 Pa. 291; Forsyth v. Palmer, 14 Pa. 96; Keil v. Chartiers Valley Gas Co., 131 Pa. 466.

James Balph, with him W. H. Pratt and R. A. Balph, for appellee, cited: Kennedy v. Erdman, 150 Pa. 427; Mellick v. R. R. Co., 17 Pa.Super. 12; Rose v. Story, 1 Pa. 190; Amer v. Longstreth, 10 Pa. 145; Nagle v. Mullison, 34 Pa. 48.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

ORLADY, J.

The plaintiff is the owner of about twelve acres of land located near to, but on a lower level than the reservoir of the defendant water company. The reservoir was built in 1889; it is about fourteen feet in depth; and is so constructed as to be in part an excavation made out of a hill and in part an embankment above the natural surface of the ground. The sides of the reservoir are paved and cemented; the bottom is puddled with clay. A supply pipe line from a pumping station crosses land directly above the level of that of the plaintiff. There was considerable controversy between the parties to this suit, growing out of overflows and washouts, which was amicably adjusted on June 13, 1901, by the payment by the defendant of $ 200 for all damages sustained by the plaintiff up to that date, at which time, it is alleged by the plaintiff, and it is not contradicted, that she was assured that the company would have the reservoir cemented, and that she would not have any further trouble from the water coming onto her property.

This suit was instituted on May 21, 1903, and in her statement the plaintiff alleges that the reservoir was constructed in so careless and negligent a manner that it had been leaking, and that water had been cast upon her land for more than two years, and that through negligence and want of care on the part of the defendant, the reservoir overflowed its banks on November 29, 1902, which caused great quantities of water to be cast upon her premises. That the defendant company constructed a cross or water gate near her premises in March, 1901, which has leaked and overflowed the plaintiff's premises and that said company has so negligently and carelessly maintained its line of water pipe and reservoir, as to cause water continually to overflow her property, etc.

The trial resulted in a verdict for the plaintiff for $ 1,000. The first specification of error taken from the charge of the court is as follows: -- " But in addition to damages by way of compensation, if you find that this trespass was a deliberate and willful act upon the part of this defendant company, done with a wanton disregard of the rights of the plaintiff, continued in with full knowledge, on their part as to what they were doing, then in addition to damages by way of compensation, making her whole for the injury which she suffered, you can give punitive damages; damages for the purpose of punishing the defendant for its willful and deliberate trespassing, on its part; and it is given for the purpose of deterring the defendant from committing this trespass, if you find that there is one. That is the purpose; not for compensation but to punish the defendant for its willful and deliberate act. If you find that this act has been such a wanton act on its part, willful and deliberate and continuing for a long period of time, you would be justified in giving punitive damages in addition to the damages by way of compensation." The second assignment of error being: " The court erred in not holding, upon the pleadings and facts in this case, that under the law, the...