6 S.W.2d 659 | Mo. Ct. App. | 1928
Lead Opinion
The case was submitted to the jury on the testimony adduced by plaintiff. Defendant offered no evidence. No contention is made that the evidence did not tend to prove the facts as alleged in the petition. A reproduction of the evidence is, therefore, unnecessary.
Defendant's contention is that if the septic tank maintained by defendant was a nuisance, it was a public one, and for that reason, it was incumbent on plaintiff in order to make out a case, to both allege and prove that she sustained special injuries or damages different in kind or character from those suffered by the public generally all of which she failed to do and for that reason, the demurrer to the evidence should have been sustained.
The law governing cases brought for the recovery of damages on account of the maintenance of a public nuisance is correctly stated by defendant and has been so long and well established that a discussion of it or a review of the cases cited by appellant would be neither instructive or interesting. We think, however, that defendant is wrong in its contention that the petition and the evidence adduced in support of it does not bring the case within this rule.
While the petition does not specifically allege that the injuries suffered by plaintiff were different in kind or character from those suffered by the public generally it does allege that the septic tank filled with sewage from defendant city was maintained, near her residence and that foul dangerous and offensive odors came from said sewage onto plaintiff's premises and into her dwelling house and deprived her of the comfort and enjoyment of her home, rendered *982 same unsalable and caused her to lose the reasonable rental value thereof.
It may be true that the stench from the septic tank affected alike all who came in contact with it, but the fact that plaintiff owned and lived in property located near the tank, and was disturbed in the comfort and enjoyment of her home, by reason of the foul and offensive odors coming from the sewage in said tank, entitled her to maintain an action for said injuries. This tank was peculiarly injurious to plaintiff on account of its close proximity to her home. This being true, a petition alleging such facts, states a cause of action although it may not specifically allege that the injuries sustained by plaintiff were different in kind from those suffered by the public generally. This question was before the Supreme Court in Edmondson v. City of Moberly,
"The evidence offered by plaintiffs tended to show that a nuisance specially injurious to them, had been caused by the acts of defendant and justified the submission of their cause to the jury. The wrong of which plaintiffs complain is not merely public in its effect. It is peculiarly injurious to them by reason of its proximity to their abode, in consequence of which they sustain discomfort and annoyance in the possession of their property and a diminution in its value not shared by the community in general. Hence it may properly be the basis of a private action by them."
Again in Givens v. Van Studdiford,
"It is true, the petition does not in so many words allege that the injury suffered by the plaintiff was other and different in kind from that suffered by the community in general, but it does, as we have seen, in detail show that he was deprived of the full use and enjoyment of the rents of his property. A slaughter house may be a common nuisance and alike uncomfortably affect all who come within the locality, but to those who live or own property in the immediate vicinity and are disturbed in the use or enjoyment of their property an action will lie. It is no objection that others similarly situated may also have a private action. [Wood on Nuisances, 736, 737.] Nor is it any objection that all those who contribute to the injury are not made defendants. [Woodyear v. Schaefer,
Other cases to the same effect might be cited, a sample of which are, Schoen v. Kansas City,
Complaint is made of the refusal of defendant's requested instruction "b" which reads as follows:
"The court instructs the jury that although they may believe that the matters surrounding the reduction or disposal plant described in evidence and here in question, amounts to a nuisance, yet the plaintiff cannot recover unless the jury further find that the damage, if any, suffered by plaintiff is peculiar to her, being such as is different in kind and not simply in degree from that sustained by other persons owning land or property in the same general locality."
It has been held in cases where damages are sought on account of the maintenance of a nuisance, it is no objection that others similarly situated may also have a private action. [Givens v. Van Studdiford,
The next and last contention is that the court erred in permitting plaintiff to prove damages to the rental and market value of plaintiff's premises. Such evidence was introduced over the objection of defendant but the court by written instruction withdrew this evidence from the consideration of the jury and specifically instructed the jury not to consider such evidence in arriving at its verdict. The instruction given reads as follows:
"The jury are instructed that in making up their verdict, they will disregard all evidence relating to the depreciation of the market value and rental value of plaintiff's property on account of the construction and operation of the disposal tank mentioned in evidence and you will not allow such evidence to affect your verdict in any way."
If the admission of this testimony was error, it was cured by the instruction withdrawing it. Where evidence is erroneously admitted an instruction withdrawing such evidence from the consideration of the jury will cure the error where there is nothing in the record to *984
indicate that such evidence created any bias or prejudice in the mind of the jury or influenced the jury in any way in arriving at its verdict. [Larrimore v. Railroad,
Finding no reversible error in the record, we affirm the judgment. Williams, C., concurs.
Addendum
The foregoing opinion by FRANK, C., is hereby adopted as the opinion of the court. All concur, except Trimble, P.J., absent.