176 Mo. App. 243 | Mo. Ct. App. | 1913
This is an action for damages alleged to have been suffered by plaintiff as operator of a sawmill by reason of the obstruction of a navigable stream in which plaintiff floated logs. The trial resulted in a verdict for plaintiff, the jury assess
The petition alleged that plaintiff, in November, 1911, was engaged in the operation of a sawmill on the banks of the Current river, a navigable stream, and that in the conduct of said business he was engaged in floating logs in said river to his sawmill; that all the logs received by plaintiff at his sawmill wrere either rafted or floated down said river to said mill, where the same were taken out of the water and manufactured by plaintiff into lumber for sale upon the various markets. It was alleged that defendant company was likewise engaged in floating logs and ties in said river, and that to facilitate its business and to enable it more easily to remove said logs from the water, defendant had constructed and maintained upon and across said river at various points near the location of plaintiff’s sawunill certain obstructions for the purpose of arresting the progress of logs, said obstructions being commonly called booms, and which were so arranged and located in said river as to be removable, and when not in use could be so placed as not to interfere with the navigation of said river. That in November, 1911, defendant had constructed upon and across the waters of said river, above the location of plaintiff’s mill, a certain boom for the purpose of arresting the progress of logs, and wilfully' and maliciously, with the intent to injure plaintiff and deprive him of the right to float logs in said river to his sawmill, did so place said boom as to prevent plaintiff floating logs in said river to his sawmill, “thereby ren dering his said mill entirely worthless, and causing plaintiff, at great expense to himself, to remove said mill to another place, where he could obtain the necessary logs for the operation of said mill.” It is alleged that the expense of removing the sawmill to another place was $500 for which actual damages judgment is asked. Punitive damages in the sum of $2000
After the court had overruled a demurrer to the petition, defendant filed as its answer a general denial.
Appellant makes the point that the petition does not state facts sufficient to constitute a cause of action and that its demurrer thereto should have been sustained.
Now it is a familiar principle that a demurrer to a pleading admits facts well pleaded and all inferences of fact that may be fairly and reasonably drawn therefrom (American Brewing Co. v. City of St. Louis, 187 Mo. 367, 86 S. W. 129), but not conclusions of law, nor conclusions of the pleader on the facts of the cause of action (Donovan v. Boeck, 217 Mo. 70, 116 S. W. 543); it admits the truth of the facts stated in the pleading against which it .is leveled and invokes the judgment of the court thereon as to the law concerning plaintiff’s right of recovery (Pidgeon v. United Rys. Co., 154 Mo. App. 20, 133 S. W. 130). On demurrer, all reasonable inferences are indulged in favor of the pleading. [Mason v. Deitering, 132 Mo. App. l. c. 35, 111 S. W. 862.] A demurrer does not reach a prayer for relief (Whitmore v. Yeager, 3 Mo. App. 582). In actions at law, a demurrer will not lie because the prayer for relief is not warranted by the averments of the petition; the court may grant any relief consistent with the case made by the evidence and embraced within the issues. [Baker v. Railway Co., 34 Mo. App. l. c. 110; Carthage Natl. Bank v. Poole, 160 Mo. App. l. c. 143.] The averment of the petition under consideration that plaintiff’s mill was rendered entirely worthless and that plaintiff was ■caused at great expense to remove it to another place where he could obtain the necessary logs for its operation, was a conclusion of the pleader; palpably so when it is observed that plaintiff had just alleged that the
In the case of Ireland v. Bowman, 114 S. W. (Ky.) 338, logs belonging to the owner of a mill on a navigable stream were canght and damaged by a dam. constituting a nuisance and it was held that the measure of damages was the deterioration of the logs while detained, the value of labor in getting the logs over the dam, and any expense incurred by reason of the dam, and any diminution in the value of the log owner’s property by reason of the nuisance.
In the case of Creech v. Humptulips B. & R. I. Co., 79 Pac.^ (Wash.) 633, the petition, in an action to recover damages caused by the obstruction of a navigable stream or slough, alleged generally that plaintiffs were thereby greatly delayed in marketing their logs, were put to great expense by reason of the obstruction, were unable to use their logging engine which was on the land, were unable to keep the hired help in their camps employed, and had been damaged in the sum of $500, and would be damaged thereafter in the sum of twenty-five dollars per day until the obstruction was removed. It was held that the petition, in the absence of a demand for a bill of particulars or a motion to make the same more definite and certain, was sufficiently specific to entitle plaintiffs to recover for the idleness of their logging engine and men, and for damages in being compelled to discharge men and employ others at a higher rate of wages.
-In the case of Page v. Lumber Co., 55 N. W. (Minn.) 608, 609, this language is used: “No general rule can be laid down for determining whether a pleading shows, or whether the evidence produced upon a trial tends to establish, a cause under the principle or rule that, to maintain an action for a wrong or injury arising out of the maintenance of a public nuisance, an individual must have sustained special injury differing in kind, not merely in degree or extent from that
Has the plaintiff shown in his petition that he sustained special injury to his property, different from -that which would be suffered by the public generally? If he has, he has stated a cause of action; otherwise, he has not. [Bailey v. Culver, 84 Mo. l. c. 538.] In determining this question in this particular case, it should be borne in mind that it is not necessary that the petition allege the measure of damages as that is a matter to be regulated by the court in the instructions. [St. Louis Trust Co. v. Bambrick, 149 Mo. 560, 51 S. W. 706.] This petition alleges that plaintiff was engaged in operating a sawmill on the banks of the Current river and in floating logs down said river to his sawmill and that all the logs received at his sawmill were either rafted or floated down said river tp said sawmill; that defendant so placed a boom in said river above the location of plaintiff’s sawmill as to prevent plaintiff floating logs in said river to his sawmill. We think this was a sufficient allegation of special injury to the plaintiff—different in kind from that suffered by the general public. This was an allegation that the ingress to plaintiff’s mill was entirely cut off by the maintenance of the obstruction. It is true (as shown by the evidence) that the slough on the bank of which the sawmill was located came back to the main channel of the Current river below the sawmill. This, however, was not such a highway left open to the plaintiff as to be a practical way to get logs to his sawmill for they would not float upstream and some artificial force would be required. He was entitled to float them down the stream- (it being admitted by the demurrer that it was navigable) and that way was entirely obstructed.
The plaintiff, however, by his petition only alleged special damages occasioned by having to move his sawmill. He was allowed to prove that he lost $125 be
Plaintiff was also permitted to show that he had 300,000 feet of standing timber up the river to which point he moved his sawmill, and that it would cost about $900 more to work it up at that'place than if he could float the logs down the river to be sawed at the old location. This was of course incompetent for the same reason, and for the further reason that there was no showing whatever how long it would have taken to cut the timber and float it down the river to the old location and saw it (the 300,000 feet) had he been permitted to float it to the old location. This proof was not admissible for the reason that unless the timber could have been cut, floated and sawed within the time the nuisance was maintained, so as to be proper damages for the maintenance of a temporary nuisance, its admission might result in the allowance of permanent, damages for the maintenance of a temporary nuisance. Indeed, the plaintiff on cross-examination testified that he had run his sawmill at the old location nearly fourteen months, and that the capacity was from 4000 to 10,000 feet per day depending on the number of men employed; that only four cars of lumber (oak) had been shipped, each containing from 6000 to 10,000 feet, and that he received fourteen dollars per -1000 feet for some, sixteen dollars for some, and seventeen dollars for some; that it cost him about seventeen dollars per 1000 feet to get the lumber from the timberland to the
The only evidence which was admissible on the measure of damages under the averments of the petition was that concerning the expense of removing the sawmill, and the plaintiff’s testimony was that this expense amounted to $150.
The petition prayed for $500 actual and $2000 punitive damages. The court, in the only instruction on the measure of damages (given at plaintiff’s request) told the jury that if their verdict was for the plaintiff, his damages should be assessed at such sum as they believed from the evidence he sustained, “not exceeding, however, the sum of $1500.” There was no instruction on punitive damages. The jury returned a verdict assessing plaintiff’s actual damages at the sum of $550, which was fifty dollars more than the petition prayed for as to that kind of damages and which was evidently allowed on account -of the-'jury having taken into consideration the evidence admitted which was incompetent under the petition. Defendant excepted to the instruction and preserved the question for our consideration. It has long been the settled rule of law that an instruction is improper which permits the jury to give a verdict for a greater sum than that asked by the pleadings. [Wright v. Jacobs, 61 Mo. 19; Dunlap v. Kelly, 115 Mo. App. l. c. 616, 92 S. W. 140.] The measure of plaintiff’s recovery is governed by the amount claimed and where the judgment is in excess of that amount it will be reversed. [Horton v. Railway Co., 83 Mo. 541; Beckwith v. Boyce, 12 Mo. 440; Cox v. City of St. Louis, 11 Mo. 431.]
In view of the fact that our order in this case will make it subject to retrial in the circuit court, and because appellant squarely presents the. question of the
’ Proof that to get logs to follow that arm of the river a boom was necessary, or that it was necessary to push the logs in the slough by means of poles and other contrivances, would not be conclusive evidence that the slough was not navigable as is assumed in de
Prom what has been said, it is manifest that the judgment should he reversed and the cause remanded. It is so ordered.