*1 City Appellant.* Respondent, Marceline, Newman, Luvina Juris-Cyc *Corpus Appeal Error, 2974, 991, p. References: section n. n, 83; 46CJ, 312, 733, 68; p. 807, section p. section n. p. section n. 7. Lon R. Owen and S. J. and- respondent. G. C. Jones-for (O. G. Derke Green B. Burns and C. M. counsel) Kendrick of appellant. FRANK, damages for 0.—Action the maintenance of to recover Linn temporary originated in the circuit court of nuisance. cause county, change court Carroll but went on of venue to the circuit- county had which resulted in a verdict and whore trial was *2 appealed. Plaintiff judgment plaintiff, and defendant favor was the of and in a located owner resided residence - petition city. alleges in substance that in defendant maintained near constructed and at all times thereafter defendant residence, septic her tank reservoir as a said home and a certain or part system city; sewage from de- the sewer of defendant city dumped tank, times, septic said and all fendant into noxious, day night, poison, both and was in said tank certain there discolored, laden, germ slimy, ill-smelling liquid; that substance or septic dangerous, sickening, dis- substance said tank emitted agreeable permeated and unbearable scents and odors plaintiff’s premises into her air and and said dwell- was carried onto house, use, ing profits, earnings, and caused her to lose the premises and home and rendered same ment and comfort of her said unsalable, her to reasonable rental unrentable and caused lose the value thereof. adduced The case was on the submitted to
plaintiff. No is made Defendant contention offered evidence. alleged prove the facts that the evidence did tend to is, unnecessary. therefore, petition. A reproduction of the evidence septic bv maintained Defendant’s contention that reason, one, public and for was a it defendant case, both plaintiff, it out a to make incumbent on order injuries damages allege dif- prove she sustained and those, general- by the from kind or character ly.- reason, do. demurrer and for that failed sustained. should been brought governing recovery Tbe law cases for tbe correctly state'! account of the maintenance of nuisance a. long bv discus- and well established that defendant and has been appellant sion of a review of the eases cited it. .interesting. think, however, that defend- neither instructive or We petition ad- ant is and the evidence in its contention bring this rule. support duced of it case does petition injuries allege specifically While character, plaintiff those bv in kind or from were different septic tank it does sewage city, maintained, her near filled defendant from residence, foul, from odors came dangerous and offensive and that sewage dwelling premises her plaintiff’s and into said onto home, ren- enjoyment of her deprived her of the comfort
dered same unsalable and caused her to lose the reasonable rental value thereof. be true that stench from septic tank affected alike
all who came in it, contact with fact that owned lived in tank, located near the and was disturbed in the comfort and home, her reason of the foul and coming offensive sewage odors tank, in said entitled her injuries. maintain an action for said peculiarly This tank was injurious on account of its close to her home. being This alleging facts, states a cause of ac- although may tion allege that sus- tained were different in kind This was before the Court in Edmondson v. Moberly, whereat the court ‘‘ by plaintiffs The evidence offered tended to show nuisance *3 specially injurious them, by to had been caused the acts of de- justified fendant and jury. the their submission of cause to the The complain plaintiffs merely of which in is its ef- peculiarly .injurious by fect. It is to them reason of its abode, consequence to their in of sustain discomfort and annoyance possession in property the and a diminution in by community may general. shared the in Hence it by properly private the be basis action them.” Again diford, in v. Van Stud 86 Mo. the Givens Court, speaking question, ato like many
“It
in
is
words
injury
by
suffered
was other and different in kind from
does,
by
community
general,
in
but
that suffered
as we
seen,
deprived
in detail
he
oE the full
show that- was
use and
slaughter
may
property.
A
be a
the rents of his
com-
ment
uncomfortably
affect
who come
mon nuisance
alike
property
own
in
immediate
locality,
those who live or
to
vicinity
in
of their
and’ are disturbed
the use or
similarly
objection
will lie.
It is
that others
situated
an action
private
may
action.
on
also have
[Wood
737.]
injury
objection
contribute
that all those who
Nor is it
The
[Woodyear
Schaefer, 57 Md.
1.]
are not made defendants.
conformity
damages,
inis
petition, in
as it discloses
so far
It well
Chitty Plead.
precedents.
789.]
well-established
[2
private.”
enough,
nuisance be
whether the
sample cited,
might be
effect
Other cases to the same
McCracken
City, are,
Mo.
Schoen v.
&
v. Swift
App. 558, 566. McCracken
Company, &
Swift
Ap-
Springfield Court
Company, supra,
first
decided
peals,
Supreme Court,
then certified
where the
Springfield
Appeals
approved
adopted.
[Mc
Company,
Cracken v.
&
Swift
The next and is that last contention the court erred *4 prove damages rental plain- to the and market premises. tiff’s Such evidence was introduced over the defendant, but the court ivritten instruction this ivithdrew jury evidence from the consideration , jury arriving structed the to consider evidence at its given verdict. The instruction reads as follows: jury making up verdict, “The are instructed that relating disregard depreciation will all evidence the market plaintiff’s property on account value and rental value of of the con- evidence, operation disposal mentioned you your any such evidence to affect not allow verdict way.” error, admission of this
If the cured admitted, withdrawing erroneously it. Where evidence is instruction withdrawing an such evidence from the instruction consideration nothing there is in the jury will cure the error where record to any prejudice indicate that such created bias jury any arriving jury way mind of the or influenced Railroad, App. 167, verdict. 173 and cases [Larrimore Hill, nothing cited; Clark v. ¥e find in the way indicating jury ivas in this record influenced evidence, ar- or that such evidence ivas considered riving guidance at its verdict. Instructions say them, in and ive did not folloAV the absence cannot showing warrant that Avonld such a conclusion. Finding' record, judgment. no reversible Ave affirm error Williams, C., concurs. hereby Frank, C., foregoing opinion
PER CURIAM: —The except Trimble, P. adopted concur, the. All of the court. Jabsent.
Mayme Bahl, Res L. al., B. et Miles, Appellant, Sheriff, John pondents.*