City & Suburban Realty Co. v. Sachse

³⁶ Adkins, J., delivered the opinion of the Court. This appeal is from a judgment on a verdict for plaintiff in an action of trespass q. c. f. The trespass and liability therefor is admitted. The important question in the case is whether there was any evidence legally sufficient to justify the trial .court in granting a prayer which permitted the jury to award punitive damages.

The plaintiff was the owner of three adjoining lots, each 25 by 125 feet, known as Hos. 105, 106, and 107 Birchwood Avenue, in a suburban development at Hamilton. They were purchased from the defendant in the year 1917 for $129 each. In the latter part of October, 1924, the defendant opened a dirt road about 30 feet wide through the middle of lots 106 and 107 without the permission of the plaintiff, and in doing so cut down about ten trees. Defendant sought to prove that it did this relying upon Ordinance Ho. 247 of the Mayor and City Council of Baltimore, passed and approved October 18th, 1924, for the opening of Arbutus Avenue from the southeast side of Walnut Avenue to the southeast side of Lindenwood Avenue.

This included the road opened by defendant. Defendant offered this ordinance in evidence and also certain plats for the condemning and opening of Arbutus Avenue in accordance with Ordinance Ho. 247. On objection by plaintiff they were excluded, and this is the subject of the first bill of exception. It is contended by appellee that this exception is not in proper form, in that it embraces two offers ruled upon by the trial court.

But w© regard the two offers as so connected that they may properly be included as one exception. The common objection to both offers was that the thing sought to be proved furnished no excuse for the trespass. The second exception was to the ruling out of the testimony of a witness for the defendant that the road was cut through after the passage of the ordinance. The fourth was to -the granting of plaintiff’s fourth prayer, overruling defendant’s special exception thereto and the refusal of defendant’s first and second prayers.

There was no error in ³⁷ refusing defendant’s second prayer, because it limited recovery to nominal damages. Plaintiff’s fourth prayer submitted the question of punitive damages to the jury. It was specially excepted to, on the ground that “there is no evidence in the case from which the jury can find that the defendant acted in such a wanton and reckless manner or in disregard of the plaintiff’s rights as to entitle her to exemplary damages.” The defendant’s first prayer was as follows: “The defendant prays the court to instruct the jury that there is no evidence in this case to entitle the plaintiff to exemplary or punitive damages, and in estimating the damages the jury should confine their verdict to such sum as will compensate the plaintiff for any damage (if the jury shall find any) which she may have sustained by reason of the construction of the roadway over the plaintiff’s property. To prevent this prayer from misleading’ the jury there should have been added to it the words “and the destruction of trees,” although that was involved in the construction of the roadway.

In our opinion the rulings challenged in the first and second exceptions and in granting plaintiff’s fourth prayer were erroneous and prejudicial. Evidence as to the ordinance was not relevant as a defense to the action. Balto. & O. R. Co. v. Boyd, 63 Md. 325 . But it was admissible to be considered with other facts by the court in determining whether the question of punitive damages should be submitted to the jury; Pr by the jury, if such question is submitted.

Balto. & O. R. Co. v. Boyd, supra. “As the ground of allowing exemplary damages is evil motive or wantonness, or aggravation, all circumstances showing the absence of these may be proved to prevent the allowance of such damages.”