Aldrich v. Wetmore, No. 8518

No. 8518 | Minn. | Dec 28, 1893

Vanderburgh, J.

The grounds upon which actions of this character may be sustained were considered in our former decision, reported in 52 Minn. 164, (53 N. W. 1072.)

The plaintiff was not obliged to elect to confine himself to the prosecution of one of the causes of action alleged, which are (1) the injury resulting from the foul exhalations from an old privy vault left in the excavation made by defendant next to plaintiff’s premises, and from the stagnant water therein; and also (2) the alleged obstruction caused by defendant’s depositing earth and debris from the excavation in the street and on the sidewalk in front of plaintiff’s premises, whereby the access to the same was obstructed and rendered inconvenient.

The elements of damage submitted by the court to the jury, upon the evidence, were the interference with the comfortable enjoyment of his property by the plaintiff, and the extent his business was interfered with through the loss of custom. The court withdrew from the jury the consideration of any damages suffered by plaintiff’s wife, or other members of his family. We think the charge sufficiently favorable to the defendant.

The defendant claims that under the pleadings no evidence of personal discomfort or suffering on account of the noxious odors should have been received or considered. The complaint might be improved in form, but it is sufficient. It shows the situation of his premises in proximity to the excavation complained of, the noxious and sickening nature of the exhalation, and its continual diffusion in and through plaintiff’s house and place of business; and the same is alleged to be a “nuisance seriously interfering with the comfortable use and enjoyment of said building by plaintiff as a place of abode, and with the proper use thereof by him in the conduct of his business,” to his damage in the sum named.

Evidence of the nature and extent of the discomfort and inconvenience suffered by him, and the effect upon him, was proper. The testimony of the plaintiff’s wife, to the same effect, was also objected to. It was competent for the purpose of showing the nature of the ■nuisance, and its effect upon the occupants of the house; and the court so limited it, and under the charge of the court her personal damages were eliminated from the case.

Upon the question of the loss of custom and the injury to the business of the plaintiff, who was a barber, a witness was permitted to state, over defendant’s objection, that about one-half of the customers left. He testified to the bare fact that plaintiff’s business fell off, and that the customers left, without stating the cause.

We think it was a fact for the jury to consider in connection with the evidence of the nature of the nuisance. But whether objectionable as incompetent, being the principal ground stated, or not, its reception was without prejudice, because the plaintiff was thereafter allowed to show from his books, without exception, just what the loss from this decrease in business was. It was certainly a natural result from the cause stated, and it was for the jury to say whether, and to what extent, the loss of business was attributable to such cause. See Goebel v. Hough, 26 Minn. 256, (2 N. W 847.)

As the action proceeds upon the ground that the defendant caused and continued the nuisance, it is no bar to the recovery of damages that the plaintiff did not make complaint to the defendant of or concerning the nuisance. Nor wms it proper evidence in chief, on the part of the defendant, that the plaintiff had brought a former action, in which only one of the causes of action embraced in this complaint was included, though inquiry touching both these matters might have been proper upon the cross-examination of the plaintiff.

Order affirmed.

(Opinion published 57 N. W. Rep. 221.)