88 P. 789 | Mont. | 1907
delivered the opinion of the court.
1. It is urged that the complaint does not state any cause of ■ action. For convenience of reference only, the causes of action will be referred to as counts in the complaint. Does the complaint in the first count state a cause of action?
While in the second count plaintiff seeks to recover damages suffered by reason of the maintenance of a nuisance by the city, the complaint in the first count must be sustained, if at all, upon the theory that plaintiff sustained damages by reason of the maintenance by the city of the same nuisance; and, since he was compelled to abate it, he may recover, as an element of his damages, the reasonable cost incurred in abating it. Upon this theory only do we think the complaint in the first count can be sustained as stating a cause of action. It appears that the plaintiff has split his demand, and has sought to recover a portion of his damages in each of two separate and distinct causes of action.
While the allegations of the complaint in the first count are indefinite and uncertain, still, in the absence of a special demurrer attacking them on such grounds, we think it is sufficient, and may be fairly said to state facts sufficient, to show that the city maintained a private nuisance, which the plaintiff might rightfully abate, under the provisions of section 4591 of the Civil Code, and, having abated it, he might recover from the city
The case of Emery v. Lowell, 109 Mass. 197, was an action by the owner of private property to recover damages caused to his property by reason of a defective drain, permitted by the city to remain in existence, and for costs and expenses necessarily incurred by the plaintiff in abating the nuisance. In considering the correctness of an instruction given by the trial court, the supreme court of Massachusetts said: ‘ ‘ The jury were rightly instructed that such damages from the choking up of the drain and the causing of water and filth to flow back into the plaintiff’s cellar included any injury which affected the estate itself, or diminished the value of its use and occupation, by reason of the inconvenience and annoyance of flowing the cellar, or of unwholesome or disagreeable smells, or of insects thereby generated or attracted to the house, and his reasonable expenses in preventing or removing the nuisance, and of changes and repairs rendered necessary, and which he could not by reasonable care and diligence have averted.”
The reason for the rule would seem to be manifest. A city has no greater right than a private person to maintain a nuisance to the detriment of anyone, and, if it does so, it may be made to respond in damages to the injured party, and the measure of damages is declared by the Civil Code, section 4330, to be the amount which will compensate the injured party for all the detriment proximately caused thereby. If the injured party has abated a nuisance, the necessary expense so incurred is a part of his detriment proximately caused by the maintenance of the nuisance, and recoverable as an element of his damages upon the same theory that the expense incurred for medical treatment may be recovered as an element for damages in a personal injury case; that is, upon the doctrine of avoidable consequences.
We think the complaint in the first count states facts sufficient to show that the sewer was a nuisance within the meaning
2. Upon the trial of the ease the issues as to the first count were materially narrowed by counsel for the city. In making an objection to a question asked the plaintiff while a witness in his own behalf as to whether the sum of $922.98 was or was not the reasonable cost of doing the work of repairing the sewer, Mr. Davies, of counsel for the city, said: “We shall object to that as incompetent, irrelevant and immaterial. If he has placed his bill for this amount—and unquestionably, if it is not a reasonable amount, he would not have placed it over the amount expended—if it was necessarily expended is the only question that arises here.” Upon this statement from counsel, the court had a right to treat the case, so far as the first count was concerned, as proceeding upon the theory that the only question at issue was: Was the sewer actually out of repair? Or, what is the same thing: Was it necessary for the plaintiff to make the repairs which he did make upon it? Or, in other words: Was the expense incurred rendered necessary by reason of any act or omission on the part of the city? Upon this question the evidence was conflicting, and the general verdict was a determination of the issue in plaintiff’s favor. The trial court having heard the testimony as given by the witnesses on the stand, and having refused a new trial on that cause of action, this court will not now interfere.
It is said that the evidence is insufficient to sustain the verdict returned upon the first count. If the city had not offered any testimony, we might agree with this contention, for the plaintiff did not offer any proof in support of his allegation that the city maintained the sewer; but this omission on the part of the plaintiff was amply supplied by the testimony offered on behalf of the city, which tended to show that the city exercised and claimed the right to exercise control over the sewer, and that
While we think the theory of the trial court respecting the plaintiff’s separate demands for damages as disclosed in instruction No. 11 was erroneous, it is apparent that no prejudice resulted to the defendant therefrom.
Some of the assignments of error relate to the second cause of action, and need not be considered. We have examined the other specifications, so far as they relate to the first cause of action, but conclude that no reversible error was committed.
3. In his second count or cause of action the plaintiff seeks to recover damages for injury to his property caused by the maintenance of a nuisance. Does the complaint in the second count state facts sufficient to constitute a cause of action?- The only averment in this count, aside from the statement that a claim for the damages was presented to the city council and not allowed, is that contained in paragraph 2 of the second count, as follows: “(2) Plaintiff further alleges that the existence of said storm sewer through and over plaintiff’s property, and through and under the said building, is a permanent injury to plaintiff’s property, by reason of the facts hereinbefore alleged, and plaintiff was and is damaged by reason thereof in the sum of $3,000.” Standing alone, confessedly, the allegations of this paragraph did not state any -cause of action whatever. But in paragraph 1 it is sought to make all the allegations contained in the first thirteen paragraphs of the first cause of action a part of the second cause of action merely by this reference. This cannot be done. (McKay v. McDougal, 19 Mont. 488, 48 Pac. 988; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.)
It is a general rule of pleading that every cause of action must be complete in itself. It must contain all the material and issuable facts which constitute the cause of action embraced in it, and its defects cannot be supplied from another cause of action. (Bliss on Code Pleading, sec. 121; Pomeroy on Code Remedies, sec. 575.) This rule, however, is generally held not
In respondent’s brief his counsel say: “This being an appeal from the judgment, the question of the sufficiency of the complaint to state a cause of action cannot be considered. There is no objection to the complaint shown to have been made, and its sufficiency is not, therefore, before the court,” and Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113, and Campbell v. Great Falls, 27 Mont. 37, 69 Pac. 114, are cited. But neither one of these.eases supports counsel’s contention. The sufficiency of a complaint to state a cause of action may always be inquired into on an appeal from the judgment. The cases cited above decide an entirely different question, viz., that on an appeal from an order denying a new trial the sufficiency of a complaint to state a cause of action will not be inquired into, unless such question was properly raised in the trial of the case in the district court.
The complaint in the second count does not state a cause of action; but, as the amount of recovery upon that count appears definitely from the verdict and judgment, the judgment may be modified, and the correct result reached by that means.
4. The action of the trial court in granting a new trial as to the alleged second cause of action was justified upon either of two grounds: (1) That the complaint in the second count does not state a cause of action; or (2) that there was not any evidence to support a verdict for $1. It is manifest that the plaintiff has but one cause of action, but that he has split his demand and has attempted to state a part of it in each count or cause of action.
As was said by this court in Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146: “The statement of each cause of action is practically a complaint in itself. No interdependence exists;
The order of the district court denying defendant a new trial as to the first cause of action is affirmed, as is also the order granting the plaintiff a new trial as to the second cause of action. The cause is remanded to the district court, with directions to dismiss plaintiff’s alleged second cause of action, and to modify the judgment by deducting from the amount of it the sum of $1 with interest thereon as computed in the judgment, and, as thus modified, the judgment will be affirmed.
Modified and affirmed.
