Wright v. Edison, s. 42488

• Decision Date: 02 June 1981
• Docket Number: 42526,Nos. 42488,s. 42488
• Citation: 619 S.W.2d 797
• Parties: Susan WRIGHT and Edward T. Wright, Appellants-Respondents, v. Stephen EDISON and Donna Edison, Respondents-Appellants.
• Court: Missouri Court of Appeals

Page 797

619 S.W.2d 797

Susan WRIGHT and Edward T. Wright, Appellants-Respondents, v. Stephen EDISON and Donna Edison, Respondents-Appellants.

Nos. 42488, 42526.

Missouri Court of Appeals, Eastern District, Division Two.

June 2, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 10, 1981.

Application to Transfer Denied Sept. 8, 1981.

Edward T. Wright, James R. Hanlin, St. Louis, for appellants-respondents.

Justin C. Cordonnier, St. Louis, for respondents-appellants.

WEIER, Judge.

Plaintiffs Susan and Edward Wright sold their house in Brentwood to defendants Donna Edison and Stephen Edison. An offer had been made to the Wrights on March 9, 1976, which was refused and a counter offer or proposal was accepted by the Edisons after they had thoroughly inspected the house and had a conversation with Mr. Wright on March 13, 1976. The closing was to be on April 28, 1976. This controversy centers around the extent of authority or license given by Wright to the Edisons on March 13 during the course of the conversation at the house. According to Mr. Wright, Edisons informed him that it would take three months to get the carpeting. To place their order they wanted to measure the floors and Wright told them that they could come in the house for that purpose. He further gave them a key so they could come in the next week to do the measuring. They were then to drop the key off at Wright's office. He denied that there was any discussion at all relative to doing any work at the house prior to the time that they were to receive possession. Mr. Edison's version indicated that two men were at the house on Saturday when the conversation occurred measuring for carpeting and wallpaper and that Mr. Wright did not voice any objection to this going on. Edison said that he had a brief conversation with Wright in regard to workmen coming in and doing preliminary work and further indicated that this matter had already been cleared with his real estate agent. As to the key, Edison stated that Wright informed him he could have the key and the workmen could come in any time and then Edison would not have to go by Wright's office to pick it up. Wright and his wife were going to Florida and according to Edison's version the key arrangement was made for their convenience. The real estate agent who represented the Edisons testified that he told Mr. Wright that the Edisons wanted workmen to come into the house prior to cleaning the place. Wright told him according to this version that he "might agree" but that he also wanted the earnest money which was then being held in escrow before this was done, the reason given being that Wright wanted to spend the earnest money that had been put up. This money was released to the Wrights.

On March 30, 1976, Mr. Wright arrived back in St. Louis and went to the home. He had difficulty getting in the house because he found that the lock on the garage had been changed. When he got in there was no heat in the house and he noticed that painting and interior renovation and construction were in progress. He tried to get the furnace to work but could get no heat. The carpeting had been taken up, wallpaper had been taken off, furniture had been moved around, an antique case had been moved and various objects in it had been broken. Some walls were painted and some were half painted. Draperies had been taken down and thrown over in the corner. There was an accumulation of dust on the furnishings and throughout the house. Water closets in the bathrooms had been ripped out and the walls were also taken out. Carpet rolls were stacked in some of the rooms and buckets were scattered over the place. The electric refrigerator was disconnected and the food left there was spoiled. The tub in the master bedroom bath was gone. When he called the Edisons they told him that they had sent in various subcontractors, one man putting in an air conditioning unit, others painting and doing carpenter work. When he conversed with the Edisons the next evening on March 31, Edison told him that he understood his real estate man had informed Wright that they were going to do this work on the premises and consent had been given. They both wanted to close with Wrights on April 1 and would pay Wright $5,000 on that day so he could make a payment on a condominium which he and Mrs. Wright were buying. When Wright went to the title company office for the purpose of closing, he insisted on having an understanding in the closing papers that he could file a lawsuit to cover any damages sustained as a result of the workmen coming into the property and performing renovation and decorating work. At the time he said he did not know what damage was done because most of the items belonged to his wife and only she would know what had been damaged. When the Edisons were informed that they had acted beyond the terms of the oral agreement, all further work on the property was stopped. The Wrights stayed at a motel for some five days and then moved back into the house until possession was finally delivered to the Edisons.

After the closing of the sale of the real estate and the removal of the Wrights and their personal possessions from the property, suit was filed by Mr. and Mrs. Wright against Mr. and Mrs. Edison seeking both actual and punitive damages. After detailing the money items of injury to personal property and to various fixtures and appurtenances belonging to the real property, plaintiffs alleged that they had suffered "distress, mental anguish, inconvenience and loss of use and enjoyment of their home" and that "the construction work, painting, removal of plaster, and other activity of Plaintiffs and others acting in their behalf caused the Plaintiffs much physical discomfort." Nine persons on the jury believed the Wright version of the conversation held on Saturday, March 13, 1976, and awarded $5,000 actual damages to the plaintiffs. In addition, nine jurors, one of whom did not sign the verdict in favor of the actual damages, awarded plaintiffs $45,000 in punitive damages. Defendants filed a motion for new trial and the court granted the motion for specific reasons set out in the motion as enumerated in the court order. Plaintiffs thereupon appealed to this court seeking to reverse the ruling of the trial court ordering the new trial and asking that the verdict be reinstated and judgment be entered thereon. Defendants have also appealed from the judgment of the court denying their motion for judgment in accordance with their motion for directed verdict on the issue of punitive damages. We affirm the rulings of the trial court for the reasons that follow.

One of the grounds of the motion for new trial upon which the court granted that motion was directed toward the giving of an instruction on damages. The instruction as given was MAI 4.01 and included the phrase authorizing the jury to fix and award future damages. The instruction as given reads as follows:

"If you find the issues in favor of the Plaintiffs, then you must award the Plaintiffs such sum as you believe will fairly and justly compensate the Plaintiffs for any damages you believe they sustained, and are reasonably certain to sustain in the future, as a direct result of the occurrence mentioned in the evidence."

This was an improper measure of damages instruction and the court's ruling in granting a new trial should be affirmed for the giving of this instruction if for no other reason. When any ground contained in the motion for new trial and designated by the trial court in support of its ruling is correct, the order granting the new trial should be affirmed. Claspill v. Craig, 586 S.W.2d 458, 461(5) (Mo.App.1979).

The trial court was correct in determining that error had been committed in the giving of this instruction for two reasons. First, MAI 4.01 should only be given where there has been damage to both the person and property. There were no allegations of personal injury and no evidence was offered with respect thereto. Plaintiffs made reference to mental anguish, inconvenience and a loss of use of their home. There is no proof, however, of any injury to their person which arose out of the facts that were litigated. The pleadings and the evidence were directed to a trespass on real estate and damage to personal property that belonged to the plaintiffs. The proper instruction to give where there is property damage only is MAI 4.02 which sets as a standard the difference between the fair market value of the property before it was damaged and the fair market value after. An additional sum may be allowed for the loss of use of the property until it can reasonably be repaired or replaced where there is evidence to justify. Most of plaintiffs' evidence with regard to damages consisted of so-called "out-of-pocket expense." Such items as cleaning and repairing personal property and the expense of the Wrights in staying at a motel until the house could be placed in a condition where they might return and live there were given as to amount but there was never any evidence with respect to the difference in value between the value of the personal property or the real estate before and after the damage had occurred. As is indicated by MAI 4.02, compensation for loss of use may be a proper item and certainly the expenses attendant upon living elsewhere until the house could be restored to a condition that would be suitable for habitation would be an item of expense that could be included in damage. The cost of repair to other items of property is an appropriate measure in only some rare instances. Where repairs to personal property such as an automobile result in causing it to be more valuable than it was before the...