89 A. 321 | Md. | 1913
This is the second suit between the same parties for an injury to the plaintiff's spring, caused by the backing up of the dammed waters of Antietam Creek. The first suit resulted in a verdict for the plaintiff, and the judgment was affirmed by this Court in
Unless the evidence disclosed a material change in conditions, the verdict and judgment in the former suit was determinative of the right of recovery. Long v. Trexler, 8 A. 620, and it was a question properly submitted to the jury whether there had been such change. *641
The first and second exceptions relate to the admission of evidence tending to show the pecuniary worth of the defendant. The declaration had charged that the acts complained of were done "intending to injure the plaintiff in the beneficial use and occupation of said farm and of the waters of the aforesaid spring." This was in effect an allegation of malice and whenever that is an element of an alleged wrongful act, exemplary damages may be asked, and the jury are entitled for such a purpose to know the means of the defendant. Wilms v. White,
At the conclusion of the evidence the plaintiff offered two and the defendant six prayers, of which the Court granted the prayers offered on behalf of the plaintiff and the defendant's second and sixth, and rejected the remainder. These rulings of the trial Court constitute the third bill of exceptions. The first prayer of the plaintiff relates only to the right of the plaintiff to recover, and that had been virtually established in the first case. The defendant's third prayer was intended to formulate for the jury a rule as to the burden and quantum of proof, and, as phrased, was susceptible of being taken as laying down the rule applicable in criminal cases or that which prevails in civil causes. It was therefore liable, if it had been granted, to have confused the jury, and hence was properly rejected. The remainder of the prayers dealt with the measure of damages, the fourth and fifth of the defendant restricting them to nominal damages, the plaintiff's second permitting them to find both compensatory and exemplary damages. Inasmuch as malice was alleged in the declaration, and was a matter to be found one way or the other by the jury, and if found entitled the plaintiff to exemplary damages, it would have been manifest error to have granted either the fourth or fifth prayers of the defendant, limiting the jury to nominal damages. For like reason the defendant's first prayer was properly refused, as by its terms *642 the jury were to be restricted to compensatory damages merely.
The criticism of the appellant was directed mainly against the second prayer of the plaintiff. The objections to it were two fold, that it permitted a recovery for damages down to the time of trial instead of limiting them to the date of bringing of the suit; and secondly, that it established a different standard for the measure of damages at different times. Neither of these objections is well founded. With regard to the first it may be said that the true rule deducible from the cases is, that if the damages arising subsequent to the date of the writ are merely incidental, and will continue independent of any subsequent wrongful act, they should be assessed up to the time of the verdict, 13 Cyc. 254; Jacobs v. Davis,
Judgment affirmed, with costs. *643
