Danker v. Goodwin Manufacturing Co.

102 Mo. App. 723 | Mo. Ct. App. | 1903

GOODE, J.

(after stating the facts as above).— The instruction given at the instance of the plaintiff permitted the jury to return a verdict in plaintiff’s favor if they found the defendant conducted its plant so as to cause gas, steam, smoke and noxious vapors to permeate the air about plaintiff’s property and to produce thereby material discomfort to plaintiff and his family in the occupancy of their dwelling or to depreciate the value of his property. This instruction went outside the evidence; for there was no testimony that gas, steam or smoke from the factory caused any discomfort to plaintiff’s family or other residents in the vicinity. While most of the evidence introduced by the plaintiff was designed to show foul odors emanated from the factory and were deleterious to the health of plaintiff’s family, this ground of recovery, as stated, was waived. As to the factory casting out gas, steam and smoke which spread through the neighborhood, there was no testimony; not a witness swore to a fact of that sort. The instructions should have confined the plaintiff’s recovery to a finding by the jury that stenches emanated from the plant which materially disturbed the comfort of the plaintiff and his family and diminished the value of his- property. The ifistruction given in behalf of the plaintiff is inconsistent with the fifth instruction given for the defendant, which restricted a possible award of damages for depreciation in the value of plaintiff’s property to a finding that offensive odors were emitted from the factory. Plaintiff’s counsel practically concedes the inconsistency -of the two instructions, but maintains it was harmless. We are of a different mind. The rule of law that instructions should not submit issues to a jury about which there is no-proof is wholesome, as tending to prevent unfounded verdicts. White v. Chaney, 20 Mo. App. 389; Paddock v. Somes, 102 Mo. 226. Plaintiff’s pleading caused this case to be tried in a way which we disapprove. The petition stated various alleged facts which tended to show the factory was a nuisance to the people near it; a mass of testimony was introduced, ostensibly to prove the different allegations, each of which would be of itself a cause of action; but finally all of them broke down and were abandoned except the one that bad odors proceeded from the factory and were so annoying as to amount to a nuisance. So much testimony on irrelevant issues was apt, not only to distract the jury and confuse their minds concerning the real issue, but to raise a prejudice which told against an impartial decision of the real issue, even if they understood what it was. The instruction requested by the plaintiff and given by the court was as misleading as the abandoned allegations of the petition .and the irrelevant evidence those allegations evoked; for it warranted a verdict against the plaintiff on a finding that gas, steam and smoke disturbed him and his family and presupposed a basis for such finding in the testimony; whereas there was no testimony of that sort.

We think the city ordinances referred to in the statement were improperly admitted as evidence and were of prejudicial influence, as a violation of them was not counted on in the petition as a cause of action. After the plaintiff had failed to make good several of the complaints originally preferred against the defendant, there remained, as possible ground of recovery, the question of whether the factory filled the surrounding air with offensive smells, thereby creating a nuisance which specially injured the plaintiff. The presence of such stenches rendered the factory a nuisance, if it was one; not a municipal declaration on the subject, even if there had been an ordinance declaring such factory a nuisance per se. But no ordinance introduced by the plaintiff attempts to declare a place which is kept clean and conducted properly, a nuisance. On the other hand, if defendant’s plant was kept foul and filthy, it must have constituted a nuisance to plaintiff’s family which the law would abate without regard to municipal provisions and regulations. Ordinances may be competent as evidence when they prove some material fact, but not the gravamen of a case, though they are not pleaded. Robertson v. Wabash Ry., 84 Mo. 119. But this rule consists well with the general rule that irrelevant and immaterial evidence should be excluded from a case. The ordinances were improperly received, not because they were not pleaded, but because they had no bearing-on the issue to be' determined. Frederick v. Allgaier, 88 Mo. 598.

Aside from the possible error in the first instruction, we think the case ought to be retried in the interest of justice on simplified issues, in order that wholly irrelevant testimony may be kept out of it.

Judgment reversed and cause remanded.

Bland, P. Jand Reyburn, J., concur.