Lustig v. U. M. C. Industries, Inc., 40391

• Decision Date: 04 May 1982
• Docket Number: No. 40391,40391
• Citation: 637 S.W.2d 55
• Parties: Jere LUSTIG, Plaintiff-Respondent, v. U. M. C. INDUSTRIES, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 55

637 S.W.2d 55

Jere LUSTIG, Plaintiff-Respondent, v. U. M. C. INDUSTRIES, INC., Defendant-Appellant.

No. 40391.

Missouri Court of Appeals, Eastern District, Division One.

May 4, 1982.

Motion for Rehearing and/or Transfer Denied June 18, 1982.

Application to Transfer Denied Sept. 13, 1982.

J. L. Pierson, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for defendant-appellant.

J. B. Carter, Carter & Becker, Clayton, for plaintiff-respondent.

STEPHAN, Presiding Judge.

Respondent lessor brought an action for statutory waste against appellant, its tenant. After eight days of trial to the jury and a verdict in favor of respondent, judgment was entered against the appellant for treble damages in the amount of $95,250.00. This is an appeal from that judgment. We reverse and remand for new trial.

Appellant leased a factory building and parking area from respondent for ten years beginning August 15, 1963. Appellant operated its manufacturing business at the leased premises until September 1, 1971, when it vacated (except for certain equipment left for storage) and gave possession to its subtenant, Maplewood Warehouse, Inc. Maplewood then used the premises as a warehouse for the remainder of the ten year lease period. Appellant continued to make rent payments while Maplewood was in possession and the lease was in effect.

Respondent sued appellant after the lease ended in August 1973, listing in its petition sixteen items of alleged damage to the building and parking lot. Respondent asserted that such damage constituted waste under § 537.420, RSMo 1969, ¹ and prayed for treble damages, alleging that the waste was wantonly committed. ² Certain of the alleged injuries occurred during appellant's occupancy and others happened while Maplewood was in possession. At trial respondent presented testimony from four witnesses, including two owners of the property, and numerous exhibits were introduced into evidence, including the lease between respondent and appellant and certain photographs. Two witnesses testified for appellant. After the conclusion of the evidence the jury was instructed regarding the law. We reverse and remand because of the damage instructions given the jury. We also address several of the many points raised by appellant because of the likelihood that the same problems will arise on retrial.

The jury was instructed that, if they found for plaintiff, they must award plaintiff such sum as will fairly and justly compensate plaintiff for any damages plaintiff sustained as a direct result of the occurrences mentioned in the evidence. This is MAI 4.01 Damages-Personal and Property. Appellant correctly points out that the proper measure of damages in an action for waste is the difference in value of the freehold estate or inheritance before and after the waste, First National Realty & Loan Co. v. Mason, 185 Mo.App. 37, 171 S.W. 971, 972 (1914), and contends that it was error to give MAI 4.01 in this case. We agree.

When the only damage is damage to property the correct instruction to give is MAI 4.02. That instruction charges the jury, if it finds in favor of plaintiff, to award the plaintiff the difference between the fair market value of the property before and after the damage. To give MAI 4.01 in a property-damage-only case has been held to be prejudicial error warranting a new trial. Wright v. Edison, 619 S.W.2d 797, 801 (Mo.App.1981); Sands v. R. G. McKelvey Building Co., 571 S.W.2d 726, 730, 731 (Mo.App.1978). So it is here.

In an action for waste, "where the damage is small in comparison to the total value of the property and is readily ascertainable and where the verdict is not excessive, the amount of such damage may be arrived at by determining the cost necessary to restore the property to its former condition." Helton v. City of St. Joseph, 340 S.W.2d 198, 199 (Mo.App.1960). See Matulunas v. Baker, 569 S.W.2d 791, 796-797 (Mo.App.1978); DeArmon v. City of St. Louis, 525 S.W.2d 795, 800 (Mo.App.1975). Such circumstances are contemplated in the Notes on Use (1980 Revision) and the Committee's Comment following MAI 4.02, 3d Ed., and a modified form of the instruction is provided which sets the "cost of repair" as the measure of damages rather than the diminution of value. The trial court may determine upon retrial that the evidence warrants this modified instruction.

Appellant correctly claims that an additional error occurred when the court instructed the jury to answer the single question: "Was the waste committed by Defendant a wanton act or acts?" The jury answered "yes" and the court trebled the amount of damages assessed for all of the items of damage in accordance with § 537.490. Damages that are the result of waste wantonly committed, and only those damages, can be trebled under § 537.490. Whether an act is wanton depends on the state of mind of the actor when the act is committed. The mental state required for a finding of wantonness has been described by Missouri courts in several ways. A wanton act is regarded as a wrongful act done intentionally, on purpose, in malicious disregard of the rights of others, or in reckless disregard of the rights of others. Brisboise v. Kansas City Public Service Co., 303 S.W.2d 619, 623 (Mo. banc 1957); Evans v. Illinois Central Railroad Co., 289 Mo. 493, 233 S.W. 397, 400 (banc 1921); Voss v. American Mutual Liability Insurance Co., 341 S.W.2d 270, 279 (Mo.App.1960); Trauerman v. Lippincott, 39 Mo.App. 478, 488 (1890). See also Gonnella v. Tucker, 625 S.W.2d 211, 213 (Mo.App.1981). In the case at bar, sixteen separate instances of waste were alleged. Absent an allegation or attempt to show that these sixteen instances were the product of a common course of action with a single underlying state of mind, it was improper for the court to lump the separate wantonness issues into a single instruction. On retrial, if the evidence so warrants, the jury should be required to treat each item of damage separately, fixing the amount and determining whether the particular act of waste was committed wantonly. Cf. Breece v. Jett, 556 S.W.2d 696, 711(13) (Mo.App.1977); Kavanaugh v Donovan, 186 Va. 85, 41 S.E.2d 489, 494(17) (Va.1947).

We now address certain of the other issues raised by appellant which are likely to recur upon retrial.

Instruction No. 4 given by the trial court to the jury reads as follows: "The term 'waste' as used in these instructions means the failure of a tenant to exercise ordinary care in the use of the leased premises or property, which thereby causes material and permanent injury thereto over and above ordinary wear and tear." ³

Appellant urges that this instruction was erroneous because it failed to distinguish so-called "voluntary" or "commissive" waste from "permissive" waste. "Permissive" waste consists of mere neglect or omission to prevent an injury to the landlord's reversion or inheritance, such as allowing a structure to deteriorate for lack of repair, permitting a stranger to injure the property, or otherwise failing to perform a duty to protect the inheritance. "Voluntary" or "commissive" waste consists of some direct injury to the property committed by the tenant in possession, such as pulling down a structure or cutting down trees. 3A Thompson on Real Property § 1271 (1981). In appellant's view, permissive waste is not actionable under § 537.420, which governs a tenant who "shall commit waste," (emphasis added); nor can § 537.490 apply, since that section requires that the waste be "wantonly committed." (Emphasis added.)

In England, a prohibition of waste which existed at common law for certain estates was expanded by the Statute of Gloucester in the thirteenth century, 6 Edw. I, ch. v (1278), to apply to tenants for life or years, and liability existed for permissive waste as well as voluntary waste. 4 Thompson on Real Property § 1852 (1979); Kirchwey, Liability for Waste I, 8 Columbia L.Rev. 425, 425 (1908). The remedy under the Statute of Gloucester was forfeiture and treble damages. American Law of Property, Vol. V § 20.17 (1952). The rule that tenants were liable for permissive as well as voluntary waste, based on the Statute of Gloucester, was followed in Missouri. Mason v. Stiles, 21 Mo. 374, 378 (1855).

In 1855, the Missouri General Assembly enacted statutory waste provisions identical to § 537.420 and § 537.490, set out supra, notes 1 and 2. Ch. 94, §§ 42, 49, RSMo 1855. These statutory provisions resembled the common law in that they applied to tenants for life or years and provided for forfeiture and treble damages. The issue before us is whether these statutes follow the common law in permitting actions for "permissive" as well as "commissive" waste.

No Missouri decision squarely dealing with this issue has been called to our attention, and we have discovered none. There has been, however, some instructive discussion in Missouri since 1855. In Coale v. Hannibal and St. Joseph R.R. Co., plaintiffs in an action for waste failed to show that defendant was a tenant for life or years, and thus " 'within the class of persons who are liable for ... permissive waste.' " 60 Mo. 227, 234 (1875). In Boefer v. Sheridan, 42 Mo.App. 226, 229-230 (1890) a tenant from month-to-month was said not to be liable for permissive waste under statute, since the statute only applied to a tenant for life or for years. These two cases support the position that when § 537.420 applies, as in the case of a tenant for years, there is liability for permissive as well as commissive waste.

Appellant argues to the contrary, using principles of statutory construction. He observes that § 537.420 applies to waste done "without special license." Appellant contends this shows an intent to exclude permissive waste since one would never give a license to be neglectful. We do not agree. The legislature anticipated that a lessor might license some acts which might otherwise constitute commissive waste; it does not follow, however, that...