76 Ind. App. 381 | Ind. Ct. App. | 1921
This was an action by appellees against
The averments of the complaint material to a consideration of the questions presented on this appeal, were as follows:
“That these plaintiffs are joint owners of a certain equity in the following described real estate, same being Lot No. 37, in Braden’s subdivision of Bret Bradden & Company’s addition to the city of Indianapolis, Marion County, State of Indiana, of the value of sixteen hundred ($1600) dollars.
“That from the operation of the said defendant company’s business and factory above mentioned, * * *, the air immediately surrounding the said defendant company’s place of business, extending to and affecting these plaintiffs’ property, becomes impregnated with obnoxious stinks and poisonous airs, which obnoxious stinks and poisonous airs deprive these plaintiffs from the free use, occupancy and enjoyment of their said property.
“That by reason of the obnoxious odors emitting from the defendant’s factory, and by reason of these plaintiffs’ property being located in said community, where said odors effect the same, plaintiffs say that said operation of said business in said location is a nuisance, and that the same should abate, and that said defendant company should be permanently enjoined from the operation of said business upon the premises above mentioned, and that said plaintiffs have sustained damages by reason of the injury of their health and the health of their family, and the damages sustained to
The appellant filed its motion to require this complaint to be made more specific, in certain designated particulars, which motion was by the court overruled, and appellant then demurred to the complaint for want of facts, and filed its memorandum of deficiencies, as required by the statute. This demurrer was also overruled. Exceptions were duly taken to each of. the aforesaid rulings. Appellant then filed its answer in general denial and the same was submitted to the court for trial, resulting in a finding in favor of appellees, and judgment in their favor in the sum of $400 and costs. There was a motion for a new trial which being overruled, this appeal is prosecuted. The errors assigned and presented challenge the correctness of the action of the court in: (1) Overruling the motion to make complaint more specific; (2) overruling the demurrer to the complaint; and (3) overruling motion for a new trial.
The two specifications in the motion to make more specific, which we consider of any importance, relate to the allegations of ownership of said property, and of injury to the health of appellees.
The allegation concerning the injury to health was an allegation of a matter, which, if true, might become a distinct basis for relief. It was an allegation concerning matters of which the appellees had a peculiar knowledge, and of which, under the averments of this complaint, the appellant could not be charged with having knowledge. We are of the opinion that the motion to make more specific, under the facts and circumstances disclosed by the pleadings in this case, should, in the particulars above noted, have been sustained.
Was the complaint sufficient as against the demurrer interposed?
Upon the trial of the case, evidence was offered tending to prove that the appellees were in possession of the premises in question. It developed upon the trial that they were in possession of said premises under a contract of purchase, by the terms of which, upon the payment of a small sum in cash, and the monthly payment thereafter of the sum of $12 and interest—which sum appellees agreed to pay—until the sum of $800 had been paid on the purchase price, then the owners of said lot would execute the deed of conveyance to appellees. It was further provided in said contract that, should appellees make default at any time, then all sums paid on said contract should be deemed to have been paid as rental for said property, and as such be retained by the owners thereof, and at the option of such owners all rights of appellees in said lot be at an end. At the time of filing this .suit, and at the time of the trial,, appellees had no deed for said- lot; all rights shown or claimed rested on their occupancy under said contract.
The judgment is therefore reversed with directions to the trial court to sustain appellant’s motion for a new trial; to sustain appellant’s demurrer to the complaint, and for further proceedings not inconsistent with this opinion.