The plaintiff in his declaration sets forth a personal injury which he had sustained in the occupation of his dwelling house, and that only. But on the trial of the cause in the City Court he wras permitted to show the injury he had sustained in the diminished value of his real estate by reason of the acts of the defendant.
Manifestly this was a departure from the cause of action set forth in the declaration. The noxious smells from the defendant’s barn yard were neither increased nor diminished by the value of the plaintiff’s premises, but they remained as great, and as grievous to be borne, and the plaintiff and his family were rendered as uncomfortable in the occupation of their dwelling house, and their health was as much affected, and consequently the plaintiff’s medical bills were as great, as they would have been if his premises were of the greatest value.
We think therefore that the City Court erred in permitting the plaintiff under this declaration to enhance his damages by showing the injury he had sustained in the diminished value of his real estate; and consequently that the Superior Court committed no error in reversing the judgment of that court.
In this opinion the other judges concurred.