Sperry v. Hurd

• Decision Date: 31 March 1916
• Docket Number: No. 17223.,17223.
• Citation: 185 S.W. 170,267 Mo. 628
• Parties: SPERRY v. HURD et al.
• Court: Missouri Supreme Court

185 S.W. 170

267 Mo. 628

SPERRY v. HURD et al.

No. 17223.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Rehearing Denied April 10, 1916.

Error from Circuit Court, Buchanan County; W. K. Amick, Judge.

Action by Samuel Sperry against James Hurd and others. From a judgment for plaintiff, defendants bring error. Affirmed on condition.

See, also, 130 Mo. App. 495, 109 S. W. 76; 151 Mo. App. 579, 132 S. W. 66.

This is a suit to recover actual and exemplary damages for malicious trespass. The fourth amended petition, upon which the present trial was had, was in two counts. The first count sought to recover $100 actual damages and $10,000 exemplary damages, and was based upon the alleged malicious acts of defendants in destroying a hedge fence belonging to the plaintiff, whereby cattle and horses escaped into one of the plaintiff's inclosures, damaging his orchard, garden, and truck patch, in the month of April, 1904. The second count seeks to recover $410 actual damages and $10,000 exemplary damages on account of the alleged malicious acts of defendant in the months of May, June, July, August, and September, 1904, in maliciously destroying a portion of plaintiff's fence constructed of wire, boards, and posts, whereby certain live stock were permitted to pass into plaintiff's truck patch, orchard, ryefield, and garden, and damaged the same, and further in depriving plaintiff of the use of 80 acres of blue grass pasturage during the months of June, July, and August of that year.

Trial was had before a jury in the circuit court of Buchanan county, which resulted in a verdict in favor of the plaintiff on the first count for $100 actual damages and $7,500 exemplary damages, and on the second count for $410 actual damages and $7,500 exemplary damages. Upon the argument of the motion for a new trial plaintiff, at the suggestion of the trial court, entered a remittitur of one-half of the exemplary damages on each count, and the trial court thereupon overruled the motion for new trial, and entered judgment for the plaintiff in the total sum of $8,010. Defendants bring the case to this court by writ of error.

This case originated in the circuit court of De Kalb county, and was first tried upon the first amended petition, containing eleven counts; the first count was in ejectment; the second count for damages for destruction of a hedge fence in April, 1904; the third count for damages for destruction of a wire fence in May, 1904; the fourth fifth, sixth, seventh, eighth, ninth, and tenth counts were, respectively, for the recovery of damages received in June, July, August, September, October, November, and December, 1904, as a result of the destruction of the wire fence; the eleventh count asked to have the title determined to a small strip of ground upon which the fence was located. Before the case was submitted to the jury upon the first trial, plaintiff's evidence tends to show that he took a voluntary nonsuit as to counts from 4 to 10, both inclusive. On that trial the plaintiff recovered judgment on the ejectment count, $20 damages on the second count, and $40 damages on the third count. The trial court granted a new trial with reference to the counts asking for damages.

Plaintiff thereupon filed his second amended petition in six counts, each count being based on the damages accruing in the separate months, beginning with April and ending in August, 1904. The second trial resulted in a judgment in favor of the plaintiff in the total sum of $456, based upon a finding in favor of plaintiff on each count. The trial court thereafter granted a new trial, and plaintiff appealed the case to the Kansas City Court of Appeals, where the action of the trial court was affirmed in the case of Sperry v. Hurd, 130 Mo. App. 495, 109 S. W. 76. Thereupon plaintiff took a change of venue to the circuit court of Buchanan county, where a trial was had upon a third amended petition, containing two counts, resulting in a judgment in favor of the plaintiff in the total sum of $1,040. The case was then taken by defendants, by writ of error, to the Kansas City Court of Appeals, where the cause was reversed and remanded, as reported in Sperry v. Hurd, 151 Mo. App. 579, 132 S. W. 66.

When the cause was remanded to the circuit court of Buchanan county, plaintiff filed a fourth amended petition, which was the petition upon which the present trial was had. The fourth amended petition differed from the third amended petition only in the amount of exemplary damages asked; the amount of exemplary damages asked being increased from $1,000 to $10,000 on each count.

The evidence upon the part of the plaintiff tends to establish the following facts: The plaintiff and the defendant James Hurd owned adjoining farms. Plaintiff's farm, upon which he lived, consisted of a 40-acre tract known as the "home 40," located in the extreme northeast corner of De Kalb county. He also owned 80 acres of land adjoining him on the east in Daviess county. He bought the home 40 in 1873 and had a survey made, which is referred to as the Williams survey. After having the land surveyed, he built a fence along the south side of his home 40, locating the fence 2 feet over on his land. The west third of this fence was hedge, and the east two-thirds was made of rails. Before this difficulty occurred the rail fence had been partly supplanted by a wire fence, beginning at the east line of the 40, and extending westward to a point about halfway of the south boundary, where it joined the end of a fence which ran northward to plaintiff's barn, near the center of the 40. The fence running north to the barn was known as the "barn fence." A large fence post, referred to in the testimony as the "corner post," was located at the junction of the barn fence and the south boundary fence. The space of a few rods between the east end of the hedge and the "corner post" was not fenced except by the remnants of the decayed rail fence. The barn fence separated plaintiff's pasture land (consisting of about 10 acres in this home 40 and 80 acres in Daviess county) from a small field or truck patch containing about 5 acres, portions of which were planted in orchard, rye, and meadow. A garden containing about one acre joined this orchard or truck patch on the northwest. There was no fence between the garden and the orchard. In April, 1904, there were 50 young cherry trees, 40 young apple trees, 80 plum trees, 5 pear trees, and about 150 young peach trees growing in the 5-acre tract referred to in the testimony as the truck patch. About 1½ acres of the truck patch was in rye.

Defendant James Hurd bought the 40 acres immediately south of plaintiff's home 40 in 1878, and, for reasons not disclosed by the evidence, built a fence along the north portion of his 40 acres parallel to the south fence of plaintiff and about 6 feet distant therefrom, forming between the two fences what was known as a "Devil's Lane."

Some time in 1903 defendant procured the services of a surveyor, and had the surveyor run a line between the adjoining 40's. In April, 1904, the defendant James Hurd and his two sons, codefendants herein, set stakes through on the line made by the surveyor. These stakes were located about 1½ feet north of plaintiff's south boundary fence.

A short time thereafter defendant James Hurd and his two sons began cutting down the hedge fence belonging to the plaintiff. The defendants brought some guns with them and leaned them against trees near the hedge fence. They cut down about one-half of the hedge fence, and made about 100 fence posts out of the hedge. Defendant also took up his wire fence south of the hedge. The hedge was 36 years old, and had never been trimmed, except on the side facing plaintiff's home for the purpose of fastening wires to the hedge. After the hedge was destroyed in this manner, five cows and five horses belonging to the defendants came over onto the premises of the plaintiff and injured his garden, orchard, and rye. Plaintiff testified that they would come over on his place at night, and that he saw their tracks 25 or 30 different times. The hedge was worth about $50. The value of the rye destroyed was $15 and the value of the garden destroyed in April and May was $50.

After cutting the hedge defendants pulled up their wire fence and rebuilt it along the line of the stakes which they had previously set, except that it appears that the wire was run from the east end of the hedge in a straight line to the "corner post," which was about 2 feet south of the line of stakes. Defendants pulled up the posts holding plaintiff's wire fence for a distance of about 60 yards east from the "corner post," and threw the posts and wire over on plaintiff's premises. Later the defendants pulled up the "corner post" and threw it over on plaintiff's premises. This left a gap of about 14 feet in the barn fence, and that night about 40 head of plaintiff's cattle which were in the Daviess county pasture passed into his truck patch and orchard. The next day plaintiff drove the cattle out, and with the help of his hired hand went to the woods and cut a large cherry post and placed it in the ground 3½ feet north of where the original "corner post" stood. He then fastened his barn fence wires and the wires from his east fence to this new corner post. He also located a brace post between the new corner post and defendants' fence and nailed boards across to close the gap of 3½ feet. The southern end of these boards came within about 3 inches of defendants' new fence. Some time during that night defendants sawed the new corner post off about 3 inches above the ground and threw it over on plaintiff's land. This permitted plaintiff's barn fence to sag and his cattle to again go into his truck patch. The next day plaintiff put in another corner post in the same location where the one had been sawed off, and again nailed on the boards to close the gap. That night the boards were knocked...