Krebs v. Bambrick Brothers Construction Company
| Decision Date | 06 June 1910 |
| Parties | ALOYSIUS KREBS et al., Respondents, v. BAMBRICK BROTHERS CONSTRUCTION COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis City Circuit Court.--Hon. Virgil Rule Judge.
AFFIRMED (upon remittitur).
T. J Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
Instruction No. 2 is bad because plaintiffs could not recover for both the damage inflicted on the building and for the loss of rent. Trust Co. v. Bambrick, 149 Mo. 560; Sheehy v. Street Ry., 94 Mo. 574; Martin v. Railroad, 47 Mo.App. 452.
Walther & Muench for respondents.
(1) The measure of damages arising from a continuing nuisance is the actual damage up to the beginning of the action, without reference to the value of the inheritance. Ready v Railroad, 98 Mo. 470; Smith v. Railroad, 98 Mo. 20; Irie v. Minigal, 66 Mo.App. 437; Pinney v. Berry, 61 Mo. 367; Sutherland on Damages (3 Ed.), sec. 1039; Sedgwick on Damages, secs. 93, 947, 948; Wood on Nuisances, sec. 511. (2) Loss of rents from vacancies caused by nuisances is a proper element of damage. Givens v. Studdiford, 86 Mo. 149. (3) Damage to plaintiffs' buildings is also to be compensated for. Ready v. Railroad, 98 Mo.App. 470; Graves v. Railroad, 69 Mo.App. 574; Sutherland on Damages, secs. 1038, 1048, 1049. (4) Defendant did not ask an instruction particularizing the elements of damage and therefore cannot be permitted to object to the plaintiffs' instruction on the measure of damages. Wood v. Kelly, 82 Mo.App. 598; Fisher v. Transit Co., 198 Mo. 591; Forrester v. Railroad, 116 Mo.App. 37; Rose v. McCook, 70 Mo.App. 183; Geisman v. Electric Co., 173 Mo. 654; Smith v. Fordyce, 190 Mo. 30. (5) Where a nuisance is continued after a judicial decree establishing the nuisance, exemplary damages should be given. Paddock v. Somes, 51 Mo.App. 320; Wood on Nuisances, sec. 868; Sutherland on Damages, secs. 1038, 1052; Standard Oil Co. v. Kinnaird, 13 Ky. L. R. 269. (6) The amount assessed by the jury for punitive damages is not excessive. Mueller v. Transit Co., 108 Mo.App. 325; Trauermann v. Lippincott, 39 Mo.App. 478; Harlan v. Wabash Railroad, 117 Mo.App. 537; McNamara v. Transit Co., 182 Mo. 676; Gildersleeve v. Overstoltz, 90 Mo.App. 518; Wamsganz v. Wolff, 86 Mo.App. 205.
Plaintiffs are joint owners of certain real estate in the city of St. Louis on which were located some three or four buildings, some of which had shingle roofs and some composition roofs. Defendant is a corporation and opened a stone quarry near plaintiffs' buildings, and in the operation of such quarry, dirt and stones were thrown on to plaintiffs' ground and on to their buildings, injuring the roofs of the buildings, and upon one occasion a large stone weighing ninety pounds was thrown on to the roof of one building, through which it crashed, broke through the ceiling and demolished a wash tub and chair in the kitchen. In the operation of the quarry, blasts were frequently exploded which caused the injuries aforesaid, as well as being annoying to the residents in plaintiffs' houses. To prevent such injury and the continuation of the operation of the quarry in such a way as to constitute a nuisance, plaintiffs, and others brought suit by injunction, and on May 9, 1907, obtained a final judgment against defendant by which it was perpetually enjoined from so operating its quarry, or permitting the same to be so operated as to throw dirt, rocks or stones on any of the property of the plaintiffs, or to jar or shake plaintiffs' buildings so as to impair a comfortable use and occupancy of said property for dwelling-house purposes, etc.
This suit was filed September 21, 1907, and its purpose is to recover damages for the injuries, and further alleges that the nuisance was willfully, maliciously and wantonly maintained, and asks for punitive damages. Trial was had before a jury, verdict found for plaintiffs in the sum of five hundred dollars actual damages, and fifteen hundred dollars punitive damages. Judgment was rendered accordingly and defendant has appealed.
The evidence on behalf of plaintiffs tended to show that the operation of the quarry, the throwing of stones and dirt upon their buildings and premises, continued after the judgment by injunction on May 9th, the same as before. That upon one occasion the plaintiff spoke to defendant's foreman, who was in charge of the quarry, about it, and said to him, "There has been some heavy blasting going on here, and Judge McDonald told me to tell you to be careful, you would get into trouble if you didn't." The foreman said:
Defendant contends that the instruction of the court on the measure of damages was erroneous. The instruction is as follows:
"If the jury find for plaintiffs, they will assess their damages at such sums as they may believe from the evidence will reasonably compensate plaintiffs for the injuries, if any, sustained by them directly resulting from the wrongful acts of defendant complained of, if any, taking into consideration the damage, if any, caused to plaintiffs' buildings, loss of rents, if any, prior to the date of the institution of this suit."
The objection now made to this instruction is that the injury proven in this case is an injury to the realty, and that damages for such injury, and for loss of rents, could not both be allowed in the same action. We understand the rule to be that where the injury is a permanent one to the realty, the measure of damages is the difference in value of the realty immediately before and immediately after the infliction of the injury, but in determining the decrease in the valuation of the property the decrease in rental value may be shown as evidence bearing upon that question. [St. Louis Trust Co. v. Bambrick, 149 Mo. 560, 51 S.W. 706.] In a case of this kind where the injury is caused by defendant maintaining a nuisance, which may be abated, and the injury to the property may be repaired at any time, the defendant cannot complain if the measure of damages be fixed at the loss of rents and cost of repairs. [Ready v. Missouri Pacific Railway, 98 Mo.App. 467, 72 S.W. 142; Smith v. The Railroad, 98 Mo. 20, 11 S.W. 259; William H. Foncannon v. The City of Kirksville, 88 Mo.App. 279.]
Defendant now insists that the injury to the houses caused by the blasting was an injury to the realty, and that the loss of rents should have been excluded from the consideration of the jury in determining the damage. As suggested before if the injury is a permanent one to the realty, the loss of rents,...
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