Welsh v. Stewart

• Decision Date: 05 June 1888
• Citation: 31 Mo.App. 376
• Parties: PETER WELSH, Respondent, v. JAMES STEWART et al. Appellants.
• Court: Missouri Court of Appeals

31 Mo.App. 376

PETER WELSH, Respondent, v. JAMES STEWART et al. Appellants.

Court of Appeals of Missouri, St. Louis.

June 5, 1888

Appeal from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Reversed and remanded.

FISHER & ROWELL, for the appellants: The court below erred in instructing the jury that they might give vindictive damages. The evidence did not warrant such an instruction, and it greatly prejudiced the defendants' case. Joice v Branson, 73 Mo. 28; Whalen v. Church, 63 Mo 326; McKeon v. Railroad, 42 Mo. 79, 85, 86; Merrill v. City, 12 Mo.App. 466; Morgan v Durfee, 69 Mo. 478; Railroad v. Quigley, 62 U.S. 214; Eddleman v. Transfer Co., 3 Mo.App. 507; Kennedy v. Railroad, 36 Mo. 365; Hawkins & Co. v. Riley, 17 B. Mon. 101; Field on Damages, secs. 23, 25, 26, 69, 70, 71, 116; Cooley on Torts, 692, 694; 2 Greenl. Evid., secs. 270, 272. Instruction number three, given for plaintiff, should not have been given. Besides declaring for vindictive damages, it contains legal propositions and terms calculated to mislead the jury. Wiser v. Chesley, 53 Mo. 547; Digby v. Ins. Co., 3 Mo.App. 603; Atteberry v. Powell, 29 Mo. 429; Dyer v. Brannock, 2 Mo.App. 432; Mueller v. Ins. Co., 45 Mo. 88; McDermott v. Donegan, 44 Mo. 91; Huffman v. Ackley, 34 Mo. 277; Turner v. Loler, 34 Mo. 461; Franz v. Hilderbrand, 45 Mo. 121. Instructions one, three, and four, given for plaintiff, conflict with those given for defendants, and entirely ignore the grounds of the defence. It was, therefore, error to give them. Henschen v. O'Bannon, 56 Mo. 289; Buel v. Trans. Co., 45 Mo. 562; Ott v. Bent, 48 Mo. 23; State v. Nauert, 2 Mo.App. 295. Instruction number three, offered by defendants and refused, should have been given. If defendants were employed and directed to take down the building in question, by the owner McLean, and landlord of plaintiff, then McLean, and not these defendants, was liable to plaintiff. The court below erred in not giving instruction number five refused. The defendant Stewart is not liable. He was not present when the alleged trespass was committed, and gave no directions to any one in regard to it, and was not represented, even by an employe. Under the whole evidence the verdict should have been for him, and the court should have so instructed. It was error for the jury to return a verdict for a lump sum. They should have assessed the damages to property and person and for punishment separately. And for their failure to do so the motion in arrest of judgment should have been sustained. Brunsden v. Humphrey, 14 Q. B. Div. 141; Homes v. Sheridan, 1 Dillon's C. C. (U. S.) 351; Scott v. Robards, 67 Mo. 291; Pomeroy's Remedies and Remedial Rights, 494; Bricker v. Railroad, 83 Mo. 391; State ex rel. v. Dulle, 45 Mo. 271; Pitts v. Fugates, 41 Mo. 405; Mooney v. Kennett, 19 Mo. 553; Clark's Adm'r v. Railroad, 58 Mo. 396; Cattell v. Dispatch Co., 15 Mo.App. 587.

A. R. TAYLOR, for the respondent: In all cases of wilful trespass upon a party's premises, and especially coupled with the destruction of his property, the law awards punitive damages. Von Frorstein v. Windler, 2 Mo.App. 598; Peckham v. Glass Co., 9 Mo.App. 463. There was but one invasion of plaintiff's right, the wrongful entry and trespass; all the injury directly caused by the trespass is but the damage from the single wrong. Our courts have repeatedly held that injury to person and property by the same wrong constitute but one cause of action. Von Froystein v. Windler, 2 Mo.App. 598; Peckham v. Glass Co., 9 Mo.App. 463; Stickford v. City, 7 Mo.App. 217; S. C. affirmed, 75 Mo. 309.

OPINION

THOMPSON J.

This was an action for damages for a trespass. The plaintiff had a verdict and judgment, from which the defendants appeal.

The case stated in the petition was that the plaintiff occupied certain premises for business purposes, and while lawfully in possession thereof, the defendants, with force and arms, wrongfully and unlawfully entered upon them and tore them down, causing a large amount of dirt, timbers, and dé bris to fall into the building, breaking and defacing the plaintiff's furniture and injuring him in his person; and the petition states the personal injuries at ten thousand dollars, and the injuries to the property at five hundred dollars, and claims judgment in the sum of ten thousand and five hundred dollars. The answer was merely a general denial and a plea of contributory negligence. The evidence of the plaintiff tended to show that he had long been a tenant of the tenement in question, under a verbal letting by Dr. McLean, the owner; that Dr. McLean employed the defendants to tear down the building for the purpose of making improvements, and that they began tearing it down while the plaintiff was still in it, inflicting upon him the injuries complained of. The evidence adduced by the defendants was to the effect that the plaintiff, having received notice from Dr. McLean of his intention to tear down the building for the purpose of making the improvements, agreed with Dr. McLean that the work might go on, and that he, the plaintiff, would either move out, or, if he remained in it, take his chances of injury. The errors assigned are of such a nature that it seems unnecessary to enlarge upon the evidence beyond this meager statement.

I. The first assignment of error is, that the court erred in instructing the jury that if they should believe that the defendants, in committing the trespass, were actuated by ill-will against the plaintiff, or by a wilful disregard of the plaintiff's rights, they might award exemplary damages. The contention is that there was no evidence which rendered an instruction upon the subject of exemplary damages appropriate. On this question the members of the court are not quite agreed except as to the result. My associates are of the opinion that the evidence does not warrant the giving of such damages against either defendant. Upon this point I am not prepared to say that I agree with them, but I do not think it necessary or proper to state the reasons of my disagreement further than to say that it seems to me that the plaintiff's evidence, if believed, makes out a case upon which he is entitled to take the opinion of the jury on the subject of exemplary damages, within the reasoning of the Supreme Court in Goetz v. Ambs, 27 Mo. 29, which is our leading case on the subject. I do not think that there is any evidence of ill-will on the part of the defendants against the plaintiff, which is one of the hypotheses in the above instruction. But I am not clear that we can say upon this record that the amount of damages to property which the plaintiff rehearses, assuming his evidence to be true, could have been committed without " a wilful disregard" of his rights. My associates find support for their conclusion in the consideration that there is no evidence showing that the plaintiff ever advised the defendants, while the mischief was going on, that he was still on the premises or that either of them knew that such was the fact, or that the plaintiff advised them that his property was endangered by what they were doing; and further, that his own evidence showed that he did not request them to stop tearing down the building. But I do not see how they could commit the amount of mischief which he describes without knowing that they were doing it; nor do I agree to the view that where a body of men tear a man's house down over his head, committing such an amount of injury to his property as the plaintiff describes, the principal actors are not liable for exemplary damages by reason of the fact that the householder does not solicit them to desist.

The grounds on which exemplary damages may be awarded have been pretty clearly set forth in this state, though not with entire uniformity, by a long line of decisions. In Goetz v. Ambs, supra, the right to such damages is predicated upon the fact of the trespass being " wilful or intentional," in which case the court say, " the idea of compensation is abandoned, and that of punishment is introduced." In Kennedy v. Railroad, 36 Mo 365, it is said that, " to authorize the giving of exemplary or vindictive damages, either malice, violence, oppression, or wanton recklessness must mingle in the controversy and form one of the chief ingredients; the act complained of must partake something of a criminal or wanton nature." In McKeon v. Railroad, 42 Mo. 87, it is said that, " such damages certainly can be given, if ever, in a civil case, only where the injury is intentionally, wilfully, and maliciously done." In Franz v. Hilterbrand, 45 Mo. 123, it is said: " Where there are no circumstances of aggravation, the damages should be compensatory only. Where, however, the act is aggravated, and where there has been fraud, oppression, malice, or gross negligence, a different rule is adopted, and the jury is allowed to award exemplary damages, not only to compensate the sufferer, but also to punish the offender." In Engle v. Jones, 51 Mo. 316, it is said: " Unless the trespass is committed in a wanton, rude, or aggravated manner, indicating oppression, malice, or a desire to injure, the damages should be compensatory only." In Doss v. Railroad, 59 Mo. 33, it is said that, " where the agents of a corporation act wantonly or maliciously, the corporation may be held to answer in exemplary damages." In Brown v. Plank Road Company, 89 Mo. 155, which was an action for damages grounded upon negligence, the judgment was reversed, because among other errors, the court gave an instruction authorizing the award of exemplary damages, whereas there was " nothing in the evidence to show that the failure of defendant to remove the obstruction thus occasioned was either wanton or malicious, one or the other of which...