61 Mo. App. 234 | Mo. Ct. App. | 1895
—The petition in this case is for damages alleged to have been caused by a private nuisance. The first count of the petition states that defendants so operated a quarry, adjoining plaintiff’s premises, as to cause rock, thrown off in blasting, to fall upon and injure the residence and other buildings of plaintiff, to cover his premises with rock, to disturb the comfort and health of his family, and deter them from their business avocations, all allegedto have been done by defendants in a reckless, wanton and oppressive manner.
The second count alleges injuries to the health of plaintiff and his family caused by cinders and smoke emitted from a coal furnace, steam boiler and engine, operated by defendants. There was a third count in the petition, which was stricken out on the motion of the defendants.
The answer of the defendants was a denial of the acts charged as nuisances in the petition, and a plea of former adjudication by a decree in favor of plaintiff enjoining defendants from operating their quarry and furnace so as to injure plaintiff. This plea was stricken
Upon the trial the following facts were undisputed. Plaintiff and his family lived on his farm of one hundred and sixty acres, which adjoins the quarry of defendants. Plaintiff’s barn is about two hundred and four feet, and his dwelling house about three hundred feet, from the quarry. Plaintiff’s granary and cow shed are between these two buildings. The quarry is from twenty-five to fifty feet deep, and is in a ravine running northeast and southwest. Plaintiff’s land is northwest of the quarry. Defendants worked the quarry until August, 1893.
Plaintiff’s evidence is that, when defendants began work, he spoke to one of them as to the quarry being close to his building, who replied: “They didn’t throw any rock;” that again, in June, he spoke to defendants, when defendant Gray sent for plaintiff and told him: “They would use the greatest care not to throw any rocks on his land;” that, a few days after this, a rock fell upon the roof of plaintiff’s barn, making a hole therein; that at a prior time (shortly after defendants began work), when they hauled a boiler over plaintiff’s road, he talked with defendant Gray about rocks being thrown on his barn, lot and fields, and told Gray that he could not use the road any more” “if they did that way:” to which Gray replied, pointing: “This is mine; that is yours, and I am going to get them rock out. * * * I will throw as many rocks as I damned please.” Plaintiff further testified that two window lights in his house were cracked and one was broken by rock, and that the house was jarred by the work of blasting from the quarry. He also testified that a rock fell among the branches of a young hickory tree, cutting off some of the leaves; that another rock, too large to be lifted, struck the top of his cow
The evidence on behalf of defendants was that the blasting necessary for quarrying purposes done by them was conducted in a careful manner by competent men; that no rocks were observed to fall upon plaintiff’s land; that the employees of the defendants were instructed to use, and did use, the utmost caution in operating the quarry. Three witnesses for defendant testified that they witnessed a blast of seventeen or eighteen kegs of powder, which threw no rocks on plaintiff’s land; that they were at the time standing above the ledge and only thirty or forty feet from the quarry, and between it and plaintiff’s houses. Defendant Gray testified that he did not use the language quoted by plaintiff, but, in the conversation then had, he did tell plaintiff “it was damned easy to keep off plaintiff’s land,” and that he intended to operate his quarry.
After instructions given, the jury returned a verdict for $295 on the first count, and $5 on the second count.
The first assignment of error is the action of the court in overruling the applications of defendants for a change of venue. The first application was made by filing the same in the clerk’s office in vacation on the twenty-sixth of February, 1894. This was overruled on the fifth day of March, being five days after the beginning of the March term of the circuit court. The second application was made in term on the twenty-
In the ease at bar the applications show that the information of the matter alleged in them was acquired on February 21, 1894. The first application was filed in the clerk’s office prior to the March term. This, however, was a presentation neither to the court nor to the judge. State ex rel. v. Matlock, supra. As the record shows that it was not presented on the first day of the March term, it and the subsequent application were out of time and properly overruled for that reason.
The next assignment of error is as to the sufficiency of the evidence- to sustain the verdict on the second count. The evidence relied on to support the finding on this count is that of plaintiff’s son, supra. It was also undisputed that the furnace in question consumed about seven bushels of coal a day; that its smokestack was sixteen feet and ten inches high, and ten inches in diameter, and that the wind did not generally blow in the direction of plaintiff’s house, which was three hundred feet distant.
Conceding that the smoke from this furnace gave plaintiff’s wife an occasional headache, such as she experienced upon her return from the town where she
The decisive question in this case is presented by the point made by appellants, that there is no evidence to sustain the instruction given by the court for punitive damages. That such damages may be awarded for a wrong done with evil intent is clear. That they can not be awarded in any case lacking the element expressed by malice or equivalent terms is sustained by an unbroken current of authority. Leahy v. Davis, 121 Mo. loc. cit. 232; State v. Jungling, 116 Mo. 162; Whalen v. The Church, 62 Mo. 326; Sedgwick on Damages, section 363. In my opinion, in the case at bar, the entire evidence fails to disclose any actual intent on the part of defendants to injure the plaintiff. That stones were scattered by blasts over plaintiff’s premises may be conceded, and that some slight losses were thus occasioned also appears from the evidence, but that any of these acts were done unlawfully and maliciously is not shown by. any substantial evidence. Respondent urges as ground for the instruction for punitive damages that at one of the interviews between plaintiff and
We are. all agreed it was not necessary, as contended by appellants, that there should be proof of the amount
My associates are of the opinion, from which I dissent, that the evidence in this record authorized an instruction for exemplary damages, and that the finding of the jury on the first count was made without the intervention of legal error. In accordance with their opinion, this cause will be reversed and remanded to the circuit court, with directions to set aside the finding of the jury on the second count, and to enter judgment in favor of plaintiff, against defendants, for the amount of the verdict of the jury on the first count. It is so ordered.