Prueitt v. Cheltenham Quarry Co.

• Decision Date: 27 November 1888
• Citation: 33 Mo.App. 18
• Parties: NEWTON PRUEITT, Respondent, v. CHELTENHAM QUARRY COMPANY et al., Appellants.
• Court: Missouri Court of Appeals

33 Mo.App. 18

NEWTON PRUEITT, Respondent, v. CHELTENHAM QUARRY COMPANY et al., Appellants.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. LEROY B VALLIANT, Judge.

REVERSED AND REMANDED.

Everett W. Pattison, for the appellants.

The error assigned is that the instruction as to exemplary damages was erroneous and not warranted by the evidence. Johnson v. Hannahan, 1 Strobh. 320; Curtiss v Hoyt, 19 Conn. 154; Berry v. Vreeland 21 N.J.L. 183; Dorsey v. Manlove, 14 Cal. 553; Brown v. Allen, 35 Iowa 306; Conard v. Ins. Co., 6 Pet. 262; Engle v. Jones, 51 Mo. 316; Kennedy v. Railroad, 36 Mo. 351; Edelman v. Transfer Co., 3 Mo.App. 507; Newman v. Railroad, 2 Mo.App. 402; Morgan v. Durfee, 69 Mo. 469; Eichelmann v. Weiss, 7 Mo.App. 87; Reid v. Price, 30 Mo. 442; Doss v. Railroad, 59 Mo. 27.

Thomas A. Russell and E. P. Johnson, for the respondent.

The instruction given by the court of its own motion as to the measure of damages was not called to the attention of the court below in the motion for a new trial, and therefore cannot be reviewed here. R. S. 1879, secs. 3557, 3774. But if it were here properly for review, the instruction was correct, and will be shown to have been so in succeeding points. A petition need not allege malice in order to recover exemplary damages; an allegation that the act was unlawful, or, which is the same thing, wrongful, being sufficient for that purpose. Howard v. Lillard, 17 Mo.App. 228; Sutherland on Damages, 766. And where the act is intentional, and the defendant to blame, it is not necessary to show express malice (Goetz v. Ambs, 27 Mo. 28), and the fact that the acts were committed after defendant had knowledge or notice of plaintiff's rights is all that is required in such cases (Carroll v. Green, 7 Mo.App. 596; Ray v. Thompson, 26 Mo.App. 431); and the circumstances of the parties are to be taken into consideration. Buckley v. Knapp, 48 Mo. 152; Daily v. Huston, 58 Mo. 361. Trespasses of this kind are one continuing act (Ray v. Railroad, 25 Mo.App. 104), and the measure of actual damages to the possessory right is the sum required to restore the premises to their original condition. Burt v. Warne, 31 Mo. 296.

OPINION

PEERS J.

This is an action quare clausum fregit. The petition sets out that plaintiff was, on the first of October, 1885, in possession of the premises as a tenant, and that defendants without leave and wrongfully entered thereon and deposited dirt, stones, etc., and trod down the grass, to his damage one thousand dollars. The answer of the Cheltenham Quarry Company denies the possession of plaintiff and the damages, admits its entry on the premises and alleges that such entry was not without leave or wrongful, but with the permission of one of its co-defendants, Kennedy, who was at the time the owner in fee-simple of the property.

The answer of Kennedy, Nega, and the other defendants is a general denial.

The locus in quo was an uninclosed lot of uneven surface, with a number of sink-holes in it, which plaintiff had leased from one Johnson, paying for the entire ten acres, twenty dollars a year rent. He says he pastured three cows on it. The evidence tended to show that the public had been accustomed to cross it in all directions, both with vehicles and afoot. The dirt, etc., placed on it by defendants was for the purpose of fixing a road out of the Cheltenham Quarry, and was done with the permission of Kennedy, who claimed to be the owner. The portion of the land covered by the dirt, etc., was very small, some thirty yards in length. About a month after the alleged trespass was committed one Fruin, with the consent of plaintiff, opened a quarry on the premises at the exact spot where the road had been located by defendants.

There was evidence that plaintiff gave defendants notice to quit putting the dirt, etc., on the land, and that he told them he had a lease from Johnson. To this defendants replied that Johnson had no title, and that defendants themselves had a license from Kennedy, the true owner. Plaintiff testified that one or two of the officers of the defendant corporation told him that they, defendants, had more right to the ground than plaintiff had; that plaintiff's lease was no good, and that they were going to put dirt on there as long as they wanted to put it on; that they were making a road through there, " and were going to have the road through there in spite of me or anybody else."

Plaintiff was told before he took possession of the lot that it did not belong to his lessor, and Kennedy did actually buy the lot and held a deed therefor, and gave Nega and the corporation the privilege of putting stone thereon. However, when the notice was served on them to quit putting dirt on the place, the officers of the company ordered it discontinued; and defendants all deny that any more was put on after that time.

Plaintiff himself introduced in evidence a record showing that early in 1886, defendant Kennedy sued plaintiff for the possession, and that the jury rendered a verdict in Kennedy's favor; but this verdict was afterwards set aside by this court, and judgment rendered for defendant therein.

There was no evidence of any malice or wantonness or recklessness on the part of defendants, or any of them, nor of any aggravating circumstances attending the trespass. But the evidence shows that if Kennedy was mistaken as to his title and right to the possession, it was an honest mistake on his part and that of his co-defendants.

Plaintiff does not himself state the amount of his damages nor how much the leasehold was diminished in value by the acts of def...