Woolston v. Blythe , 214 Mo. App. 5 ( 1923 )

ON REHEARING. Plaintiff's instruction No. 10 reads as follows:

"The court instructs the jury that if you find for plaintiff upon the first count of his petition, and further find and believe from the evidence that the acts mentioned in other instructions of this court, and upon which plaintiff's right of recovery depends, as contained in other instructions of this court, were done if at all, wilfully, maliciously and recklessly and in wanton disregard of the rights of plaintiff, then in addition to compensation for actual damages done, if any, you will allow to plaintiff such exemplary or punitive damages as you may think proper under all of the evidence and circumstances of the case to impose as punishment, not exceeding, however, the sum of five thousand dollars for punitive damages.

"The word ``maliciously' as used in this instruction does not mean spite or ill will, but simply means the intentional doing of a wrongful act without regard to the rights of others.

"The court further instructs the jury that if you find for both compensatory and punitive damages, you will state the amount and kind of damages so found by you separately in your verdict, but you can not find punitive damages on the first count without first finding actual damages upon said count in your verdict."

It is claimed that this instruction is erroneous for the following reasons:

". . . it does not restrict the jury to an award of punitive damages against only such defendants as acted maliciously, but it permits the jury to assess punitive damages against all of the defendants who were liable for actual damages, even though some of them were not actuated by malice; and because the instruction does not tell the jury that if some of the defendants were guilty of malice and others were not then the jury could not award any punitive damages against any of the defendants; and because the instructions should have told the jury that they could not award as punitive damages any greater sum against the defendant thatwas least culpable, and for that reason should be punishedleast."

The evidence shows that if defendants committed the acts complained of by plaintiff and any one of them was guilty of malice, then all were guilty for the reason that all of them participated in the diverting of the channel of Sugar Creek to the land of plaintiff's intestate, knowing the consequences. Under the heading of "Malice in law" or implied malice, Bouvier says —

"It is a general rule that when a man commits an act, unaccompanied by any circumstances justifying its commission, the law presumes he has acted with an intent to produce the consequences which have ensued." [2 Bouvier's Law Dictionary (Rawle's 3rd Revision), p. 2068.] There is no evidence of any actual malice in the case. In fact appellants in their reply brief on rehearing state: "There was no evidence on the trial of this case that shows express malice on the part of any of the defendants." However, it is insisted that the defendant Reuben Thomas was not guilty of any malice whatever. The evidence shows that this defendant lived in the neighborhood; that he was fully acquainted with Sugar Creek and its various changes since 1902; that he had assisted in repairing levees; that he knew the situation of the land of plaintiff's intestate; that he helped to cut and pile some of the willows and that he put the sycamore tree in the creek in the spring of 1908. While this defendant was not guilty of actual malice, he knew the effect of his act in diverting the channel of the stream on to the land of plaintiff's intestate and was just as much guilty of implied malice as the other defendants.

As to awarding punitive damages in an amount which the jury believed should be assessed against the least culpable, defendants cite the case of Byrne v. News Corporation and Young,195 Mo. App. 265. In that case one of the defendants was guilty of actual and the other implied malice but the trial court by reiterating and emphasizing the fact that punitive damages could be assessed, told the jury that it could allow the same amount of damages against the defendant who was guilty of implied malice only that it should assess against the defendant guilty of actual malice. This was wrong because the jury could not assess punitive damages in any greater amount than that which it should find should be imposed upon the defendant that was the least culpable. It was stated in the opinion in that case that it is well known that juries regard actual malice with a greater degree of culpability than implied malice. In the case at bar there is no question of actual and implied malice involved as we have already stated, and plaintiff's instruction No. 10 was not on the measure of damages and was proper as far as it went. It merely told the jury under what circumstances it could assess punitive damages without telling them how they should be assessed against the defendants. If the defendants wanted an instruction upon this point, they should have requested it.

There is nothing in the point that in defining the word "maliciously" the instruction should have told the jury that the acts were not only wrongfully and intentionally committed but in addition that they must have been known by defendants to have been wrongful. The instruction as worded does this. [Leavell v. Leavell, 122 Mo. App. 654, 658; McNamara v. Transit Co.,182 Mo. 676; Custer v. Kroeger, 240 S.W. 241, 244.]

The contention is made that the court erred in overruling defendants' demurrer to the evidence for the reason that A.B. Woolston had his farm rented for a share of the crops and the tenants were not made parties to the suit, and in giving plaintiff's instructions it allowed a recovery for the rendering of A.B. Woolston's land unfit for cultivation during the years 1908, 1909 and 1910, depriving him of the use of said land during said years, and in refusing defendants' instruction "I" which told the jury that if A.B. Woolston "had his land . . . rented during the years 1908, 1909 and 1910, then the plaintiff is not entitled to recover any damages for the year or years during which said lands were rented." (Italics ours.) The word "rented" was used in the petition and evidence in this case in a general sense, and as to the year 1908, there is evidence from which we must say that the word was used in the sense of a cropper. There is no evidence introduced by the defendants tending to show that the land was "rented" as that word is used in a technical sense, in the years 1909 and 1910 although such fact was pleaded in the answer.

It is claimed that the petition admitted that the land was "rented" in the year 1908 because it alleged that — "plaintiff's intestate had at said time and during said year of 1908 all of said lands in cultivation and in a condition to be cultivated; that at said time he had fifty acres of corn land at the rental value of fifteen dollars per acre; that said corn land was leased for one-half of the corn to be raised thereon during said year."

It is claimed that because the petition said that the corn lands were "leased" it admitted that the corn lands were rented. However, it is quite apparent from reading the petition, and after verdict it must be construed in a favorable light to plaintiff, that the petition makes no such unqualified admission. It says that plaintiff's intestate at said time had "all of said lands in cultivation," conveying the idea that the lands were in the possession of plaintiff's intestate, and the language following in connection with such language should be so construed as to say that the words "rental" and "lease" were not meant as used in their technical sense, for the reason that if the lands were rented or leased, plaintiff's intestate technically would not have "said lands in cultivation," but the same would have been in cultivation by his tenant. We think that there is no admission in the petition and that there is ample testimony in the record that during the year 1908 the land was tilled by a cropper. The peremptory instruction was, therefore, properly overruled and plaintiff's instructions upon the question were properly given. Under the evidence it was a question for the jury as to whether the tiller of the soil was a cropper or a tenant. [Davies v. Baldwin, 66 Mo. App. 577.]

Defendants' instruction "I" was properly refused for the reason that it tended to confuse the jury by not telling the jury what was meant by the word "rented" and the jury might have found, in view of the way in which that word "rented" was used in the pleadings and the instructions, that although the land was being tilled by a mere cropper during those years yet the land was "rented." It is not seriously disputed that if the parties tilling the soil were mere croppers and not tenants, the right of possession of the land being in plaintiff's intestate, plaintiff was entitled to recover for the loss of the use of the land.

Instruction "J" was properly refused for the reason that it assumed as a fact that defendants cut the willows on "No Man's Land" and removed the debris therefrom in order to prevent overflow waters from remaining on "No Man's Land." Of course, this was an issue for the jury. The instruction reads in part as follows:

". . . He (the owner of land) has the right to erect a dam or barricade on his own land to prevent such surface waters from coming upon his land or from spreading over or flowing on any part of his land, even though such water is thereby cast upon the land of another. And the defendants had the right to cut the willows on ``No Man's Land' and to remove the logs and debris on said land and to place willows that had been cut along the side of willows that were not cut in order to cause any flood or freshet or rain waters not flowing within the bank of a stream to flow off of ``No Man's Land,' and even though such waters were thereby caused to flow onto the lands of A.B. Woolston, the defendants are not liable for any damages resulting therefrom."

Instructions "K" and "L" were properly refused. It is insisted that these instructions were the only ones that defendants offered that sought to tell the jury that defendants were not liable for any damage that was done to the property of plaintiff's intestate by reason of the fact that the overflowwaters of Sugar Creek were turned onto it as a consequence of the cutting of the willows and the clearing of ``No Man's Land' if the banks of Sugar Creek were not cut. These instructions are similar. Instruction "L" sought to tell the jury —

". . . that if you believe from the evidence that at the time the defendants cut the willows on ``No Man's Land,' in 1908 the waters of Sugar Creek were flowing in the channel of said creek to the south across ``No Man's Land,' then the defendants had a right to cut the willows from the banks of said Sugar Creek to George Woolston's land and they had the right to remove the willows and logs and debris from the space where said willows had been cut, and they had the right to place all or any part of the willows that had been cut against the willows that remained standing, and if you believe from the evidence that the defendants did so and that thereafter a rain or freshet occurred and broke or overflowed the banks of Sugar Creek, and that none of the defendants cut the bank of said creek or caused it to be cut, and did not place logs in the channel of Sugar Creek and thereby obstruct the flow of the water therein to the south, and that the waters of Sugar Creek thereafter in 1908, 1909 and 1910, either in time of high water or at the ordinary stage of the water, flowed through the space on which said willows had been cut onto and over the lands of George Woolston and onto the lands of A.B. Woolston, then the defendants are not in any way liable in this case."

If it was intended to instruct the jury by this instruction that defendants would not be responsible for overflow waters, as well as regular waters of the creek, flowing over the land of plaintiff's intestate if defendants did not cut the bank of the creek, the instructions should have expressly told the jury this without confusing them. Defendants should not have worded the instructions in such a way that the jury could find for them even though they found that the willows were cut over the space leading to the land of plaintiff's intestate and that space cleaned out for the purpose of diverting the channel. Under the instructions they could find for defendants if these acts were done for the purpose of having a freshet break through the banks of the creek and thus have the waters of the channel diverted onto the land of plaintiff's intestate. However, under such circumstances defendants had no right to do the things which the instructions say they were permitted to do without liability. Witness Barnes testified that when they cut the swath defendants dug a place eight or ten feet wide out of the west side of the creek bank. This digging was at the junction of the swath with the bank. Nothing is said in this instruction about this although it has the jury find that the bank was not cut, which the jury would probably construe to mean not cut through.

Defendants given instructions Nos. 3 and 6 submitted to the jury the circumstances under which defendants would not be liable for diverting the channel of Sugar Creek, and if defendants desired to submit an instruction concerning their liability for causing overflow waters to flow upon the land of plaintiff's intestate, they should have requested a simple one that would have accomplished that purpose and one that would not have confused the jury as to what was intended to be submitted. We think that defendants' instructions "K" and "L" had a tendency to confuse the jury and were, therefore, properly refused. [Deere v. Plant, 42 Mo. 60, 63; Clarke v. Kitchen, 52 Mo. 316.]

Complaint is made that the court erred in instructing the jury that they should disregard all evidence of the judgment assessing damages upon the injunction bond in the Moore case, that said judgment constituted no defense in this case. The facts show that the injunction was issued in 1908 and dissolved in 1910; that some of the defendants in the case at bar were sureties upon the injunction bond. Moore was the only party in the injunction case. The judgment rendered on the motion to assess damages was against Moore as principal and said defendants as sureties. The judgment under the injunction suit was for damages for which Moore alone was liable. The damages sought to be recovered in the case at bar were for acts of defendants in "unlawfully, wrongfully and maliciously" turning "the waters and overflow waters of said Sugar Creek and causing them to flow onto, across, over and upon the said lands of plaintiff's intestate," while the damages that could have been recovered in the injunction case were on account of the acts of Moore in enjoining the repairing of the levee along Woolston's property. It was stated in Albers Commission Co. v. Spencer, 236 Mo. 608, 630 —

". . . it may be stated as good and acceptable general doctrine that compensation for losses sustained by a defendant which are the actual, natural and proximate result of the wrong committed by the restraining order, while the latter is alive and operative, is the measure of damages to be assessed against bondsmen. Says High (2 High on Inj. (4 Ed.), sec. 1663): "In estimating damages sustained by the improper issuing of an injunction, the courts proceed upon equitable grounds, and while it is difficult to fix any precise rule or standard for determining the damages upon dissolution, it may be said generally that nothing will be allowed which is not the actual, natural and proximate result of the wrong committed."

And it is stated in 34 L.R.A. (N.S.) 951 (note) — ". . . damages resulting from the acts of third persons are not so caused by the injunction as to render the sureties on the injunction bond liable, but are, at most, only remotely occasioned by the injunction."

There was evidence that at the time of the issuance of the injunction no waters were flowing through the broken levee of Woolston. Defendants strenuously deny this but the testimony of A.B. Woolston, found in respondent's additional abstract of the record is to this effect. He testified: "There was no water running on George (meaning George Woolston's land) from Sugar Creek in 1908 until after the swath was cut through there and throwed it out. There was no water there when he was enjoined." The witness Barnes, as shown in respondent's additional abstract of the record, testified that there was no water running through the swath at the time the willows were cut and being placed. No damages to the land or crops were asked or assessed upon the bond. However, Woolston was not permitted to repair his levee during the pendency of the injunction suit and no doubt he could have recovered in that suit for damages, if any, resulting to him by reason of such prevention, but he could not recover any damages against the defendants in the case at bar for the reason that they were not parties to the suit, and, as before stated, this cause of action is for damages caused by their acts alone. The petition asked only for those damages and the jury in plaintiff's instructions were confined to such damages as were suffered by plaintiff's intestate, caused by the affirmative acts of the defendants pleaded in the petition. We think then that this suit was maintainable against the present defendants in the case and that the action of the court was proper. It makes no difference if Moore was originally made a party to this suit; it did not go to the jury against him so we need not go into that. The judgment in the injunction suit is not res adjudicata.

The judgment is affirmed. All concur.