| Mo. Ct. App. | Apr 20, 1918
— The plaintiff recovered a judgment in an action in trespass, the jury awarding $200 actual damages and $300 exemplary damages.
The defendant company was operating a lead and zinc mining plant near plaintiff’s land. By the operation of the plant there was a discharge of water which contained -a ■ gray or murkish colored sediment called hy the witnesses “sludge,” and this was released hy the defendant in a small dry branch which coursed across a private road owned hy plaintiff and other landowners which afforded them a route to the, public road leading to Springfield, Missouri, the city where they did their trading. This water also ran over some of plaintiff’s field, and near a springhouse on her land where she kept such articles of food as must be kept cool, and the water of which spring she used for drinking, and the water containing the sludge also ran near a stock pond on the plaintiff’s land. Without going into detail it is sufficient to say that this water carrying this sediment would settle in the branch and at times of heavy rains when the branch would be high from
It is first contended that unless an individual has sustained some special damage by reason of a public nuisance he cannot recover, citing authorities which sustain the proposition. This ,of course only goes to the question of the damage. concerning the road. The first answer to this is that the evidence clearly shows
Neither is the claim that there was no evidence to justify the awarding of .punitive damages warranted under the facts of this record. While the evidence of the defendant would tend to show that it was not wilfully or recklessly or maliciously doing plaintiff an injury, yet we can only look to the plaintiff’s evidence as that was accepted as the fact by the jury which tried the case, and her evidence tends to show that although the defendant’s agents and managers knew they were damaging her property and although she had gone to them several times notifying them of this fact and asking them to quit it, there was no attempt whatever made to avert the injury and damage that their act was continuously doing and never did they stop until this suit was brought for the damage that had be.en done. This is evidence of injuring plaintiff’s property and her rights therein wilfully and that it was done in reckless disregard of such ■ rights, to her discomfiture and annoyance. Therefore it was not improper to submit the question of punitive damages to the jury.-
“If you find a verdict for plaintiff upon the foregoing considerations and if you further find and believe from the evidence that the casting of said mine water onto and across plaintiff’s land by defendant was willful, that is, without lawful excuse, or that it was done in reckless disregard of plaintiff’s rights or to the discomfort and annoyance which it might cause herein the use and enjoyment of her property, then you are authorized to assess a further sum against defendants by way of punishment for such willful or reckless conduct, if any, not to exceed the sum of five hundred dollars, and in this connection you are instructed that defendant had no legal right to cast its mine water onto plaintiff’s land, whether it actually damaged her or not — and it is not necessary that you should find that she has suffered any actual damages in order to authorize the finding of punitive damages, if any, under these instructions.”
We may say, as to the last clause in the instruction, that the jury did give $200 compensatory damages which fact eliminates any question as to error in that clause. v
The principal assualt on the instruction is that it did not leave it to the discretion of the jury to assess punitive damages because by its wording — it is contended by appellant — it did not give them the liberty to use their own discretion in giving or withholding punitive damages, and this, because, appellant argues, the word “authorized” is an equivocal word which in one sense was a direction to the jury to assess such damages. If its contention in this respect be true the instruction contained reversible error because it has been the repeated holding in this State that when an instruction is given as to punitive damages it must clearly inform the triers of the fact that the giving of such damages is a matter of their discretion. It
It is interesting to note that the Supreme Court in the case of State v. Dwire, 25 Mo. 553" court="Mo." date_filed="1857-10-15" href="https://app.midpage.ai/document/state-v-dwire-8000157?utm_source=webapp" opinion_id="8000157">25 Mo. 553, held that the word “authorized” is an equivocal word and should not be used where the jury are to be told they are at liberty to act, as the word might imply to them that they were required to so act. This case has never been overruled or criticised, expressly. And we take it that the discretion which must be given the jury in allowing punitive damages in civil cases must be as unentrammeled as the discretion given them in a criminal case where the law is that they are given the right to exercise their discretion.
We however find in the civil case of Paulette v. Brown, 40 Mo. 52" court="Mo." date_filed="1867-03-15" href="https://app.midpage.ai/document/paulette-v-brown-8002151?utm_source=webapp" opinion_id="8002151">40 Mo. 52, that an attack was made on the following instruction: “If the jury find that Thomas Tallis wilfully and knowingly swore falsely to any material matter in'this ease, the jury are authorized to discredit the whole of the testimony of said Tallis.” The court said, speaking of the instruction in which the jury were “authorized” to discredit, that there was no invasion of the province of the jury and that nothing appeared on the face of such declaration that could lead a rational mind to suppose that it was intended as a positive demand to the jury to discredit it. And while the Dwire case is discussed and referred' to therein and no criticism on the use of the word “authorized” there was made, yet there can be no other effect given to the language used by the court than that the word “authorized” as used did not invade the province of the jury by commanding them.
Turning to other jurisdictions, we find that in the case of Calder v. Southern Ry. Co., 89 B. C. 287, Ann. Cas. 1913 A, 894, the following instruction in a punitive damage case was approved where the jury were told they were authorized to find punitive damages: “The
“Authorized” is defined in Bacon v. Davis (Cal.), 98 P. 71" court="Cal. Ct. App." date_filed="1908-09-22" href="https://app.midpage.ai/document/bacon-v-davis-3285817?utm_source=webapp" opinion_id="3285817">98 Pac. 71, as meaning “empowered.” In State v. Board of Commissioners (Kan.), 114 P. 247" court="Kan." date_filed="1911-03-11" href="https://app.midpage.ai/document/state-ex-rel-jackson-v-board-of-county-commissioners-7900334?utm_source=webapp" opinion_id="7900334">114 Pac. 247, it is said that the word means “to give a right to act.” In Webster’s Dictionary — “to clothe with authority.” Century Dictionary — “to give legal power to.” In People ex rel. Hilliker v. Pierce, 119 N.Y.S. 21" court="N.Y. Sup. Ct." date_filed="1909-10-15" href="https://app.midpage.ai/document/people-ex-rel-hilliker-v-pierce-5412271?utm_source=webapp" opinion_id="5412271">119 N. Y. Supp. 21, it is said that the words “authorized and empowered” are usually words of permission merely and generally have that sense when used in contracts and private affairs but when used in statutes are frequently mandatory and imperative. On the other hand, it was held in Atlanta, K. & N. R. Co. v. Gardner, 122 Ga. 82" court="Ga." date_filed="1905-02-01" href="https://app.midpage.ai/document/atlanta-knoxville--northern-railway-co-v-gardner-5574025?utm_source=webapp" opinion_id="5574025">122 Ga. 82, 49 S. E. 818, 821, that the word “authorized” used in an instruction would not be equivalent to a command. In Masur Tebbetts Implement Co. v. Smith, 65 Ill. App. 319" court="Ill. App. Ct." date_filed="1896-06-18" href="https://app.midpage.ai/document/mansur-tebbetts-implement-co-v-smith-6997219?utm_source=webapp" opinion_id="6997219">65 Ill. App. 319, 324, we find the word "“authorized,” as used in an instruction in regard to punitive damages, is criticised as being equivalent nearly to the word “entitled.” “While it is not believed to be the best word to use,” said the court, “yet its use has never been condemned so far as we are aware. It was used in the case of Hodgson v. Millward (Pa.), 3 Grant 406" court="Pa." date_filed="1863-07-01" href="https://app.midpage.ai/document/hodgson-v-millward-6315430?utm_source=webapp" opinion_id="6315430">3 Grant Cas. 406, with apparent approval.” In Seeds v. Burk (Pa.), 37 A. 511" court="Pa." date_filed="1897-05-24" href="https://app.midpage.ai/document/seeds-v-burk-6244294?utm_source=webapp" opinion_id="6244294">37 Atl. 511, 513, it is said that the word implies discretion.
We know that an ordinance authorizing and empowering the mayor or marshal of a city to keep and preserve the peace is mandatory and involves a duty on the part of such officers. On the other hand, an ordinance authorizing and empowering the • officers of
A word having such a pronounced double meaning ought to be used in an instruction wherein only one of the meanings of such word is proper to be used.
As to whether this is reversible error, it may be well to look to the other instructions given.
The first instruction — on the measure of damages — told the jury that if they found certain facts to exist they must assess damages in plaintiff’s favor. They were also told in another instruction that before they could find the issues for the plaintiff for actual damages they must not only find that the defendant permitted the water and mud to flow on her land but must find that plaintiff was damaged. And they were told that in estimating plaintiff’s punitive damages they may take into consideration her condition in life as shown by the evidence.
We might say, as was said in the case of Hauser v. Steigers, 137 Mo. App. l. c. 570, 119 S.W. 52" court="Mo. Ct. App." date_filed="1909-05-11" href="https://app.midpage.ai/document/hauser-v-steigers-8265144?utm_source=webapp" opinion_id="8265144">119 S. W. 52, where a similar proposition was being discussed, that although the instruction is not well drawn, in view of the other instructions we think there was no chance for men of ordinary intelligence to derive the opinion that they had been instructed they must award punitive damages if they found for plaintiff.
However, there are other faults apparent in this instruction on punitive damages. It is misleading in this, that it can be so read that if the casting of the mine water on and across plaintiff’s land by the defendant was done to her discomfort and annoyance which it might cause her in the use and enjoyment of her property they were authorized to assess punitive damages; that is to say, if the jury should find that it was wilfully or if it was recklessly done or if to the discomfiture or annoyance of the plaintiff. The latter permission upon which punitive damages could be allowed by this instruction is one going only to the actual damages and not one going under the law to
The instruction in this case on punitive damages is, so badly framed that it will not meet the requirements of the law defined by Judge Cray in the case of Geary v. Railroad, 173 Mo. App. 249, 158 S.W. 736" court="Mo. Ct. App." date_filed="1913-07-28" href="https://app.midpage.ai/document/geary-v-st-louis--san-francisco-railroad-6630548?utm_source=webapp" opinion_id="6630548">158 S. W. 736, and we therefore hold that the complaint against this instruction is well founded.
If, within ten days from the date on which' this opinion is handed down the plaintiff files with the clerk of this court a written remittitur of the punitive damages, the judgment will be affirmed; otherwise, it will