32 Pa. Super. 521 | Pa. Super. Ct. | 1907
Opinion by
One of the plaintiff’s complaints was that the defendant wrongfully and injuriously constructed its works and negligently maintained and carried on its business, as a result of which the plaintiff’s buildings were damaged. No evidence of negligence was introduced, however, the plaintiff relying on testimony tending to establish the existence of a nuisance in the business which the defendant conducted. There is also an averment that the atmosphere was made unwholesome and injurious to the plaintiff’s tenants. The latter charge, however, was eliminated from the case by the court, together with all the evidence relating thereto, the issue being confined to- the inquiry whether the defendant maintained a nuisance and whether that nuisance was injurious to the buildings occupied by the plaintiff’s tenants. The plaintiff had been a resident of Marcus Hook for many years and was the owner of several houses which he rented.' The defendant, a New Jersey corporation, erected its works in the borough in 1902 and engaged in the business of refining Texas petroleum. The plaintiff’s allegation was that in the process of refining, offensive and noxious vapors were emitted which destroyed the paint upon the houses referred to, blackened the paper on their walls and corroded their metal roofs. Many witnesses were called who testified to the presence of offensive vapors in the atmosphere which they attributed to the defendant’s refinery. They were not observed before the refinery was put in operation and the observation of the witnesses led them to believe that they were given out by the defendant’s works. Some- of this evidence related to the effect of the vapors on the witnesses, themselves. Other parts of the testimony had reference to this effect on the plaintiff’s houses and other property in the vicinity. None of it, however, was admitted by the court for any other purpose than to show the origin of the objectionable fumes and the deleterious effects of them. Their existence might be proved both by the senses of the witnesses and their effect on the surrounding buildings and vegetation. Neither jury nor counsel could have understood that the evidence was admitted for the
The plaintiff does not seek to recover damage for the injury to the tenants. His allegation was that there was a physical injury to the property. The damage was to the freehold and not to the tenants’ occupancy. For such an injury the landlord may maintain an action notwithstanding the occupancy by a tenant: Devlin v. Snellenburg, 132 Pa. 186. There is no evidence that the tenants were bound to repair, and certainly no obligation rested on them to make reparation of the injury alleged to have been caused by the defendant: Earle v. Arbogast, 180 Pa. 409. The plaintiff is none the less entitled to recover even if he has not actually made the repairs. The value of his property is reduced to the extent of the injury whether he should determine to apply the amount of his damages to the improvement of his property or keep the money in his pocket. If his property had been wholly destroyed by the unlawful and injurious act of the defendant he would be entitled to compensation whether he rebuilt or not.
The declaration charged negligence, but it was not necessary that the plaintiff offer evidence in support of this averment. A nuisance is sufficiently charged and the question of negli
The learned trial judge did not undertake to review the evidence of the many witnesses who testified in the case, but the attention of the jury was directly and pointedly called to the matter at issue which the court said was a plain question of fact; did the fumes from the defendant’s plant injure the plaintiff’s property in a substantial manner ? if it did, the defendant is liable for what it will cost to restore it. It is true the amount of the plaintiff’s claim was stated, but there was no intimation from the court that that was the amount to which he was entitled; on the contrary the jury was particularly directed to take into consideration all the evidence bearing upon the question as to what would compensate the plaintiff for his loss. We think the charge is not obnoxious to the criticism that it presented the plaintiff’s case more fully than the defendant’s. Under no aspect of the case would the court have been justified in giving binding instructions for the defendant. There was evidence tending to support the claim set forth in the declaration and it was the duty of the court to submit the question of fact to the jury.
The objection to the addition of interest to the amount of the verdict is purely technical. The verdict carries interest and the defendant has, therefore, sustained no injury. In order, however, that the judgment may be had in conformity to the proper practice, judgment is now entered in favor of the plaintiff for the amount of the verdict, $1,250, with interest from the date of the verdict, November 3, 1905.
The assignments are all overruled and the judgment affirmed.