Warren v. Coharie Lumber Co.

MANNING, J. In our opinion, the evidence that the Little Coharie River was a floatable stream within the definition established by the decisions of this Court was sufficient to be submitted to tbe jury, and, approving tbe rulings of bis Honor upon tbe exceptions taken to tbe evidence addressed to tbe first issue, we cannot disturb the finding on that issue. Comrs. v. Lumber Co., 116 N. C., 731; S. v. Corporation, 111 N. C., 661; Gwaltney v. Land Co., 111 N. C., 547; s. c., 115 N. C., 581. We think tbe plaintiff was entitled to recover upon tbe evidence tbe actual or compensatory damages sustained by him and allowed by tbe jury, but we do not think tbe evidence sufficient to be submitted to tbe jury on tbe issue of punitive damages. Section 3559, Eevisal, condemns as unlawful tbe act of tbe defendant in willfully obstructing tbe flow of tbe water in tbe Little Oobarie Eiver; but tbe fact that defendant did tbis act is tbe only fact offered by tbe plaintiff in support of tbe allowance of punitive damages. There is no evidence of malice, wantonness, ill-will, trespass upon tbe person, or any other fact usually held essential for an allowance of punitive damages. In actions of tort, in which punitive damages are allowed, tbe *38 controlling principles are very well settled by the decisions of this Court. Downing v. Stone, 152 N. C., 525; Stanford v. Grocery Co., 143 N. C., 419; Kelly v. Traction Co., 132 N. C., 368; Ammons v. R. R., 140 N. C., 200; Hansley v. R. R., 117 N. C., 565; Waters v. Lumber Co., 115 N. C., 648; Holmes v. R. R., 94 N. C., 318; Jackson v. Tel. Co., 139 N. C., 347; Remington v. Kirby, 120 N. C., 320; Wylie v. Smitherman, 30 N. C., 237; Duncan v. Stalcup, 18 N. C., 440. In Duncan v. Stalcup, supra, this Court said: “In looking into tbe books, we find tbe rule in tbis action to be tbat tbe jury are not restricted in tbeir assessment of damages to tbe amount of tbe mere pecuniary loss sustained by tbe plaintiff, but may award damages in respect of tbe malicious conduct of tbe defendant, and tbe degree of insult witb wbicb tbe trespass was committed. Tbe plaintiff is at liberty to give in evidence tbe circumstances wbicb accompany and give character to tbe trespass. In trespass quare clausum fregit tbe jury are not confined to tbe precise value of tbe subject-matter of damages, altbougb- they are not allowed to go out of tbe way to an unreasonable amount. In trespass to tbe person, tbe jury are permitted to punisb insult by exemplary damages.” In Stanford v. Grocery Co., supra, tbis Court said: “Tbis right to punitive damages does not attach, however, as a conclusion of law, because tbe jury have found tbe issue of malice in such action against tbe defendant. The right under certain circumstances to recover damages of tbis character is well established witb us; but, as said in Holmes v. R. R., 94 N. C., 318, such damages are not to bo allowed ‘unless there is an element of fraud, malice, gross negligence, insult, or other cause of aggravation in tbe act which causes tbe injury.’ ” In Ammons v. R. R., supra, it is said in tbe concurring opinion, wbicb is quoted witb approval in Stanford v. Grocery Co., supra: “Such damages are not allowed as a matter of course, but only when there are some features of aggravation, as when tbe wrong is done willfully or under circumstances of oppression, or in a manner wbicb evidences a reckless disregard of the plaintiff’s rights.” Tbe various phases of tbe question are elaborately presented in 2 Sutherland on Damages (3 Ed.), secs. 391-403, and sus *39 tains the doctrines enunciated by this Court. See, also, Hale on Damages, pp. 207 et seq.; Smith v. Bagwell, 15 Fla., 117; Chiles v. Drake, 2 Met., 146; 74 Am. Dec., 406; Rath v. Eppy, 80 Ill., 283; Freese v. Tripp, 70 Ill., 496; Hauser v. Griffith, 102 Iowa, 215; Reddin v. Gates, 52 Iowa, 210; Ward v. Ward, 51 Iowa, 686; Jackers v. Borgman, 29 Kan., 109; Bactaker v. Staples, 27 Minn., 308; 38 Am. Rep., 395; Barr v. Moore, 87 Pa. St., 385; 30 Am. Rep., 367; Cole v. Tucker, 6 Tex., 266. In all of these cases the rule is recognized and accepted that even where the act causing the injury is criminal, yet the plaintiff, suing to recover damages, must show, in order to recover punitive or exemplary damages, malice, fraud, wanton or willful disregard of his rights, or other circumstances of recklessness or aggravation, unless the crime producing the injury requires proof of one of these elements to constitute the offense. The only injury done to the plaintiff was the delay in the transportation of his raft. There was no evidence that defendant had any information that plaintiff had or would use the river for such purpose. As we have said, the evidence contains no one of the elements essential to support the claim for punitive-damages, and in the absence of such evidence, the sole fact that the act done by the defendant which caused the injury to plaintiff was a violation of the criminal law is not a sufficient foundation to support an allowance of punitive damages. His Honor should have directed the jury, upon the evidence, to answer the fifth issue, “Nothing.” The finding upon that issue is set aside, and the judgment below will be so modified, and judgment entered for the actual damages allowed by the jury, interest and costs; and, as so modified, it is affirmed. The costs of this appeal will be taxed against the appellee. Modified and affirmed.