Judgment on the pleadings should be denied, if the pleading assailed can be sustained by the most liberal construction. Dunnell, Minn. Dig. § 7694. "The rule is more liberal in favor of the pleading than when it is attacked by demurrer." Robertson v. Corcoran, 125 Minn. 118, 145 N.W. 812. Motions for judgment
on the pleadings should not be a substitute for a demurrer. McLaughlin v. City of Breckenridge, 122 Minn. 154, 141 N.W. 1134,142 N.W. 134. That a pleading is indefinite is not a ground for granting judgment against the pleader. Malone v. Minn. Stone Co.36 Minn. 325, 31 N.W. 170. This action is grounded upon the tort of defendants' decedent. If the damages claimed are only for injuries to the person of plaintiff, the cause of action did not survive the tort feasor. "All other causes of action by one against another, whether arising on contract or not survive." G.S. 1913, § 8174. The injuries alleged under the liberal rule stated are at least in part to property rights. The case of Erb v. Western Display Co. 155 Minn. 225, 193 N.W. 177, cannot be distinguished from the present case. There the defendant's wrong in the operation of a factory destroyed the quiet enjoyment of the plaintiff's adjacent dwelling, and disturbed his repose and that of his family, and by constant shaking and vibration of the dwelling rendered it unfit for habitation. The injury stated was held to be to property, within the principle of Millett v. Minn. Crushed Stone Co. 145 Minn. 475, 177 N.W. 641, 179 N.W. 682, and the cause of action survived. Of course, the damages claimed under this complaint arising from tort, cannot be filed or adjusted in the probate court. Comstock v. Matthews, 55 Minn. 111,56 N.W. 583.
Simmer v. City of St. Paul, 23 Minn. 408; Singer Mnfg. Co. v. Potts, 59 Minn. 240, 61 N.W. 23; Independent Brewing Co. v. Burt,109 Minn. 323, 123 N.W. 932, are cited by respondent, but none go to the sufficiency of the allegations of general damages from the injury resulting to an occupant of premises and his family from the wrongful disturbance and interference with the enjoyment thereof by a wrongdoer.
The judgment must be reversed.