51 Mo. App. 320 | Mo. Ct. App. | 1892
This suit was instituted on the twenty-second day of May, 1886. Its object was to enjoin the continuation of a nuisance and to recover damages to plaintiff’s land for its continuation. The petition alleges that, in a former action between the same parties, the right of the defendant to erect the nuisance complained of had been decided adversely to him. The defendant is, and for several years previous to the institution of the present suit was, the owner of several “tenement houses on the west side of North Broadway in the city of St. Louis, and the plaintiff is the owner ■of vacant lots immediately opposite on the east side of the street. The nuisance complained of was maintaining a sewer pipe across Broadway, by means of which it was alleged that the surface water, drainage and sewage from the defendant’s premises were collected and discharged upon the plaintiff’s lots. The first trial resulted in a judgment for the defendant. 'This judgment the supreme court reversed on appeal. Paddock v. Somes, 102 Mo. 226. The court remanded “the cause with the following directions: “The judgment will be reversed and the cause remanded, with
I. It is insisted that this is not a proper case for the assessment of exemplary damages, there being no evidence of ill will toward the plaintiff, or that the defendant acted wantonly in continuing the nuisance. On this subject the court instructed the jury as follows: “The court instructs the jury that, if they believe from the evidence that the defendant had wilfully and with malice continued the flow of drainage or sewage through the pipe across North Broadway from the premises of the defendant onto the lots of the plaintiff, they will, in addition to any damage they may assess for the injury to the lots of plaintiff for their use for building purposes, assess and find in their verdict punitive or exemplary damages,” etc. This instruction, under the conceded facts, was more favorable to the defendant than he had a right to expect. It was conceded that, in a previous action at law between the same parties, there had been a verdict of a jury against the defendant for damages to the same property, which damage was caused by drainage through the same pipe. The judgment, which was entered on that verdict, is unreversed. It is also conceded that the defendant failed thereafter to take any steps to abate the nuisance. Therefore, the" presumption arises that the defendant in
'll. It is claimed that the amount of compensatory damages which was assessed by the jury was not warranted by the evidence. In this we thinb-'the defendant is right. The only evidence bearing on this question,
III. There was no error in excluding the offer of the defendant’s evidence that he proposed to lay a pipe through the plaintiff’s lots. It was the defendant’s duty to remove his sewer pipe, and it was the plaintiff’s privilege to enjoy his property as he saw fit. Neither was it reversible error to refuse the defendant’s sixth instruction which reads: “The court instructs the jury that, if they believe that any witness sworn in this case wilfully testified falsely to any material fact in this case, they may disregard all the testimony of such witness.” Under the evidence the court would have been justified in giving this instruction. This, however, rested largely .within its discretion. State v. Hickam, 95 Mo. 322; White v. Maxcy, 64 Mo. 552. The evidence does not convince us that the court abused its discretion..
This being a pi’oceeding in equity, it is our duty either to make judgment here, or remand the cause with directions to the circuit court to modify its decree as to the quantum of damages. The latter we regard as preferable. The judgment as to the amount of the damages only will be reversed, and the cause remanded with directions to the circuit court to modify its judgment in this respect by reducing the amount of the damages to $200 with six-per-cent, interest thereon from October 29, 1891, and that the plaintiff have execution therefor, together with the costs of the proceeding. The costs of this appeal are adjudged against the respondent.