65 Ind. App. 95 | Ind. Ct. App. | 1917
The complaint in this case charges that the plaintiff’s wife is the owner of certain described real estate in Michigan City, Indiana, which was oc-: cupied by plaintiff, his wife and two sons. On May 15, and on other days following, defendant deposited on its right of way, at a point about 200 yards from such dwelling house, large quantities of putrid, decomposed and decaying manure and offal, and allowed it to remain there for a long period of time. Thereby a nuisance was created from which unhealthful, offensive and noxious odors and vapors were generated and emitted so that the air in and around such premises became and was during all the time aforesaid infected with poisonous matter and rendered unwholesome and unhealthful. During the month of August, 1909, one of plaintiff’s sons became sick and, because of such nuisance and the unwholesome odors and vapors which were generated and emitted by the said nuisance, as aforesaid, he was prevented from regaining his health and he remained sick from that tiriie until he died of tuberculosis December 11, 1910. The minority of appellee’s son, his ability to earn money, and the amount of ex
We have carefully read all the evidence produced at the trial, and we conclude that it tends to prove that appellee was the father of the deceased minor child; that such child was by reason of his sickness unable to perform any labor subsequently to December, 1909. Prior thereto he was earning $1.75 per day. The expense of supporting such child was from $100 to $150 each year. The expense for medicines and medical care and in sending him to the State of California for the betterment of his health was $1,000. That appellee and his son at the time of the commission of the acts complained of was residing on the lands described in the complaint; that the acts charged in the complaint were committed by appellant and that they affected the minor son of appellee so as to interfere with and prevent his recovery; and that the things done by appellant which amounted to the commission of a nuisance were continued by appellant after notice had been given to it of the effects of such acts upon appellee’s family, including his said son.
Section 267 Burns 1914, §264 R. S. 1881, provides in part: “A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child * * Except as provided in such statute the father, when living, is the only person who may maintain an action for the injury or death of his minor child. Louisville, etc., R. Co. v. Lohges (1892), 6 Ind. App. 288, 33 N. E. 449; Chicago, etc., Stone Co. v. Nelson
In Hosmer v. Republic Iron, etc., Co., supra, the court said: “It is obvious that to maintain an action for an injury affecting the value of the freehold the plaintiff must have a legal estate. But if noxious vapors and the like cause sickness and death to one who has a lawful habitation in the neighborhood, no sufficient reason is to be found in the accepted definitions of nuisance, nor in that policy of the courts which would discourage
In the case of Fort Worth, etc., R. Co. v. Glenn, supra, the court said: “If a suit be brought for an injury to real estate caused by a nuisance it is clear that the plaintiff must show that he has some right which has been injuriously affected. If the damage be to the right of those occupying the property at the time, he must prove title, or at least a right of occupancy. If it be of such permanent character as to cause damage to an estate in reversion or remainder, the reversioner or remainderman, if he sue, must prove his title as such. But why should the owner of a house be allowed to recover damages for being made sick by a nuisance created in the vicinity thereof, and another lawful occupant be denied a remedy for a like reason? * * * It seems to us that a conflict of opinion upon this question has arisen from confusing the damage which results to property from a nuisance, with that special damage, such as sickness, which may result to an individual from a nuisance either public or private.”
While in the present case the property was owned by the mother and occupied by the father and son by what may be termed mere sufferance, the principle announced in the above cases is applicable to the facts of this case.
The definition which our legislature saw fit to enact as to what shall constitute a nuisance is broader than the comman-law definition of nuisance, and, in addition to injury to property, includes also injury to life. In states having similar statutes the decided cases recognize that such definition would authorize an independent action for damages such as we have here without regard to any legal or proprietory interest in the real estate. See Fisher v. Zumwalt, supra; Hosmer v. Republic Iron, etc., Co., supra.
Judgment affirmed.
NOTE. — Reported in 115 N. E. 678. Death: measure of damages recoverable by parent for death of minor child by wrongful act, Ann. Cas. 1912C 58, 1916B 532, 13 Cyc 369; persons entitled to sue for death of minor, 13 Cyc 332.