Groh v. South

Stockbridge, J., delivered the opinion of the Court. This is the second suit between the same parties for an injury to the plaintiff’s spring, caused by the backing up of the dammed waters of Antietam Creek. The first suit resulted in a verdict for the plaintiff, and the judgment was affirmed by this Court in 119 Md. 297 . The facts are substantially the same in the present as in the former record, and need not be again repeated.

In the present suit the plaintiff asks for the damages to which he has been subjected since the time of the rendition of the former judgment, and for exemplary damages, if the jury shall find the continued acts of the defendant a reckless and wanton disregard of the rights of the plaintiff. Unless the evidence disclosed a material change in conditions, the verdict and judgment in the former suit was determinative of the right of recovery. Long v. Trexler, 8 Atl. 620 , and it was a question properly submitted to the jury whether there had been such change. ⁶⁴¹ The first and second exceptions relate to the admission of evidence tending to show the pecuniary worth of the defendant. The declaration had charged that the acts complained of were done “intending to injure the plaintiff in the beneficial use and occupation of said farm and of the waters of the aforesaid spring.” This was in effect an allegation of malice and whenever that is an element of an alleged wrongful act, exemplary damages may be asked, and the jury are entitled for such a purpose to know the means of the defendant.

Wilms v. White, 26 Md. 380 ; Sloan v. Edwards, 61 Md. 89 ; Mertens v. Mueller, 119 Md. 525 ; West Chicago St. Ry. v. Morrison, 160 Ill. 288 ; 13 Cyc. 112. The rulings of the trial Court upon these two exceptions were therefore correct. At the conclusion of the evidence the plaintiff offered two and the defendant six prayers, of which the Court granted the prayers offered on behalf of the plaintiff and the defendant’s second and sixth, and rejected the remainder. These rulings of the trial Court constitute the third bill of exceptions.

The first prayer of the plaintiff relates only to the right of the plaintiff to recover, and that had been virtually established in the first case. The defendant’s third prayer was intended to formulate for the jury a rule as to the burden and quantum of proof, and, as phrased, was susceptible of being taken as laying down the rule applicable in criminal cases or that which prevails in