Action at law by homeowner plaintiffs for damages resulting from private nuisance created by defendant operated asphalt plant resulted in judgment on verdict adverse to defendant, and it appeals. We affirm.
Defendant is a closely held family type corporation, Wood Weaver, sometimes hereafter referred to as Weaver, being the president.
About 1945, defendant acquired by lease a relatively small limestone quarry located east of property later purchased by plaintiffs, the two tracts being separated by a county road. Size of the quarry has since been substantially increased.
November 4, 1957, plaintiffs purchased and commenced occupancy of a house located on land situated at the easterly edge of the town of Alden.
April 1966, an oil burning auxiliary asphalt plant or pug mill was set up in the quarry at direction of defendant to assist it in a highway 69 resurfacing project. This plant was located on the west side of the quarry about one or two city blocks from the Claude home.
Plaintiffs claim offensive dust and smoke from the subject mill caused injury to them and their property.
Trial to jury resulted in an award of damages to plaintiffs, $500 compensatory and $1100 exemplary.
The sole issue presented on appeal is whether evidence presented was sufficient to generate a jury issue as to punitive damages.
I. This being an action at law it is reviewable only on errors assigned. Rule 344(a) (3), R.C.P., and Henneman v. McCalla,
Errors neither assigned nor argued on appeal present no. question for review. Associates Discount Corp. v. Held,
II. While there must be some substantial evidence on which to base an instruction, all relative and material evidence, including justifiable inferences, favorable to plaintiff, must be accepted at face value in determining whether a jury issue is created. Nizzi v. Laverty Sprayers, Inc., Iowa,
Our function is not to weigh the testimony, but to determine whether there was substantial evidence presented upon which a jury could find for plaintiffs on their claim for punitive damages. In that regard we view the evidence in a light most favorable to the party prevailing in the trial court. Rule 344(f) (1), (2), R.C.P., and Jennings v. Farmers Mutual Insurance Association,
III. As previously stated, plaintiffs were awarded actual damages resulting from presence of the private nuisance created by defendant operated asphalt plant.
With reference to the foregoing, this court said in Bates v. Quality Ready-Mix Co., Iowa,
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Touching on the matter at hand we held, in Iverson v. Vint,
Since judgment entered on the compensatory award is not challenged, it stands as a finality from which it follows existence of a nuisance as alleged was here established. See Johnson v. Iowa State Highway Commission,
Furthermore, actual compensation allowed must, under the circumstances, be accepted as reasonable and proper.
IV. This brings us to the matter of exemplary or punitive damages.
Dealing with that subject we said in Sebastian v. Wood,
With regard to the foregoing see also Legal Seminar, Iowa Academy of Trial Lawyers, October 1963, page 71; Prosser, Law of Torts, Third Ed., Hornbook Series, page 9; 25 C.J.S. Damages § 117(1), page 1107; and 22 Am.Jur.2d, Damages, sections 236-237, pages 322-325.
V. Always troublesome is that element essential to an award of punitive damages commonly referred to as “malice”. In fact, some authorities look upon its usage in connection with the subject here presented as a misnomer.
This was demonstrated in Amos v. Prom, D.C.,
“The Iowa Supreme Court recently referred to the categories of malice in the case of Robinson v. Home Fire & Marine Ins. Co., Iowa 1953,
“While it is not entirely clear whether the Iowa decisions regard ‘malice in fact’ as a descriptive term for ‘legal malice’ or as a synonym for ‘express malice,’ it i§ apparent that the ‘malice’ required to permit an award of exemplary damages is something less than actual ill-will or express malice and may be termed ‘legal malice’ for want of a better expression.”
Continuing the court said, loe. cit., 136— 137: “ * * * the intentional doing of a ‘wrongful act’ without justification will permit an inference of the wicked state of mind. Yet it is apparent that many wrongful or illegal acts may be intentionally committed from motives wholly apart from any malice or evil intent directed toward the person who happens to suffer by the action, as where defendant is motiviated by a desire for gain and has no feeling at all for those injured by him.
“Therefore, when the law reaches this last stage, as it has in Iowa, it is no longer ‘malice’ which is required but the ‘something else’ from which malice is said to be presumed. See Schnathorst v. Williams, 1949,
And in Newman v. Nelson, (10 Cir.),
In addition to authorities heretofore cited, see Charles v. Epperson & Co., Inc.,
VI. As heretofore indicated, it is well established in this jurisdiction, punitive damages cannot be allowed in the absence of an actual damage award. This court has consistently adhered to that principle. See
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Syester v. Banta,
VII. An Allowance of exemplary damages turns more or less on the facts peculiar to any case, and rests largely in the discretion of the jury, but the amount allowed must generally be proportionate to actual damages granted.
This court so held in Hartman v. Peterson,
Incidentally, no remittitur is permitted in this state if punitive damages awarded are found to be excessive. The only remedy in that event is to set aside the recovery therefor. Mallinger v. Brussow,
But, as previously stated, defendant is content to stand upon the premise no fact issue as to exemplary damages was established by plaintiffs, which means we are not here concerned with amount awarded by way of punishment.
VIII. Error asserted in the case at bar is broad, but liability of a corporate entity, for punitive damages, is neither urged nor discussed by defendant. As a result we are not here called upon to consider or resolve that issue and do not do so. Stated otherwise, the question as to liability of a corporation for exemplary damages is not involved in this appeal. However, with regard to the foregoing see Baltimore & P. R. Co. v. Fifth Baptist Church,
IX. The determinative issue before us is whether, under the circumstances revealed by the record, “malice” or reckless disregard for the rights of others is disclosed.
Prior to placement and operation of the pug mill here involved, an asphalt plant had been operated in the quarry area. On that occasion a civil action for nuisance resulted in an award of damages. This was at all times here concerned known to Weaver.
Nevertheless, defendant claims asphalt plants have since been improved, the one involved in the case at bar being equipped with a dust collector, washer, and adapted to use with higher type fuel which produces a cleaner smoke than before.
At time the subject plant was erected, plaintiffs and other nearby residents manifested concern. Weaver assured them the mill would be shut down whenever the presence of offending dust and smoke was reported. The machinery was placed on high ground because of the smoke hazard resulting from use of a short smoke stack, and at a point more readily accessible to trucks used in the hauling process.
Weaver indicated interest in public relations but refused to relocate the mill because of cost involved. It functioned about one month and operations were finally discontinued only when the highway project was completed.
*146 The Claudes were not affected by smoke and dust every day, but it was quite bad two days, and offendingly present five or six other days.
April 29, 1966, smoke and dust from the plant covered plaintiffs’ property, similar to a dust storm but coarser and five times worse. Complaint was made to Weaver but the mill continued operating.
The next day plaintiffs and some neighbors met to discuss the problem. Weaver, though not invited, attended the meeting and again promised corrective action whenever notified.
May 27th, complaints were made but plant work continued intermittently.
May 28th, Mrs. Claude and two neighbor ladies complained. There is some dispute as to conditions existing that day, but the plant foreman offered money to one of these women because of the plant created mess. In any event mill operations continued.
Early forenoon, May 31st, presence of offensive dust and smoke was reported. This time Weaver was not present but the plant was closed for a short time. On returning he drove past the Claude home where people were gathered, went on to the mill site, and ordered it again placed in operation. Plaintiffs called their attorney who in turn talked to Weaver, but he refused to then close down and did not do so until about noon.
On several occasions the mill was not operated due to rain, breakdowns or unavailability of trucks.
Defendant generally contends manifestation of solicitude, use of modern equipment, and efforts to eliminate or reduce offensive dust and smoke bar plaintiffs’ right to recover punitive damages. This is to us a novel but nonpersuasive approach. Stated otherwise, we do not believe full play of the facts allow defendant to hide behind any such ineffective barricade.
That which an offending party says or professes may be important, but is quickly obliterated by counterprevailing conduct of such nature as to disclose the declarations made were in fact meaningless. In a case such as that here presented, it is actual conduct which controls, not statements of interest, sympathy, or concern.
What is termed reasonable use of ones property cannot be so extended as to include emission of noxious smoke and dust resulting in material damage to a neighboring property owner. And when, as in the case at hand, the evidence discloses continued contamination of the atmosphere, by an offender, despite repeated ■ complaints on the part of those resultantly injured, there exists a manifestation of disregard for rights of others.
Furthermore, we are satisfied it is no defense to show the nuisance causing instrumentality is built in accord with latest approved methods or operated skillfully. Conceding for our purpose the most modern machinery was used in a claimed effort to alleviate a potentially offensive situation, it still remains a condition amounting to nuisance, was in fact created and maintained, as disclosed by the evidence, including exhibits presented. See Vaughn v. Missouri Power & Light Co., Mo.App.,
X. Viewed in a light most favorable to plaintiffs, it is to us evident some substantial evidence was presented disclosing defendant knowingly and intentionally, without just cause, persisted in the maintenance of a private nuisance despite repeated protests and complaints of its harmful consequences, thereby disclosing such willful disregard for plaintiffs’ rights as to create a jury issue relative to punitive damages.
Affirmed.