Porges v. Jacobs, 147 P. 396

Porges v. Jacobs

147 P. 396 | Or. | 1915

Mr. Justice McBride

delivered the opinion of the court.

1. The court erred in admitting testimony as to the depreciation in the market value of plaintiff’s property caused by the alleged nuisance. The reason why such evidence is inadmissible in cases of this kind is that the alleged nuisance is temporary and can be abated. When cause for depreciation is removed, the market value is restored to its normal figure. The true measure of damages is the depreciation in the rental value, plus compensation for the discomfort and annoyance or injury to health which plaintiff has suffered by the existence of the nuisance: Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317 (27 L. Ed. 739, 2 Sup. Ct. Rep. 719); Joyce on Nuisances, § 490; Stroth Brewing Co. v. Schmitt, 25 Ohio C. C. Rep. 231; Shirely v. Cedar Rapids etc. R. Co., 74 Iowa, 169 (37 N. W. 133, 7 Am. St. Rep. 471); Van Veghten v. Hudson River etc. Co., 103 App. Div. 130 (92 N. Y. Supp. 956); Gerow v. Village of Liberty, 106 App. Div. 357 (94 N. Y. Supp. 949); Cane Belt R. Co. v. Ridgeway, 38 Tex. Civ. App. 108 (85 S. W. 496). As the jury returned a verdict for only $1 damages, it is apparent that they did not seriously consider plaintiff’s testimony as to the depreciation in value of the property, and the error was probably harmless. We call attention to it here for the reason that as there must in any event be a retrial of the case the error may be evaded hereafter.

2. The court erred in admitting the testimony of the witness Graves. The ultimate conclusion to be found by the jury was whether the conditions under which defendant’s stable was maintained constituted in law a nuisance. Evidence as to the production by it of foul odors thrown out and exhaled, of the great num*494her of horses stabled in it, so that they kept the occupants of plaintiff’s building awake at night, and of its breeding flies and being the headquarters for mice and rats, which overflowed into plaintiff’s premises, was competent to enable the jury under the instructions of the court to determine the ultimate fact as to whether a nuisance existed; but the witness should not have been allowed to give his opinion upon such ultimate conclusion, which, to say the least, is a mixed question of law and fact, to be determined by the jury under the direction of the court as to the law The admission of such testimony would justify a court, in a case where a witness had been present at a homicide, in allowing him to say:

“I was present at the killing. The defendant committed manslaughter. ’ ’

Opinion evidence is rarely admissible, except in certain cases, where the statute makes it so; as in criminal cases in this state, where the defense is that of insanity, and an intimate acquaintance of the prisoner is permitted to express his opinion as to the prisoner’s sanity, or where the testimony of an expert in some particular trade, profession, or calling is necessary to inform the jury upon matters of which the average person is presumed to be ignorant: 1 Thompson, Trials, § 377 et seq., Jones, Evidence (2 ed.) § 359.

3. The defendant alleges as error the failure of the court to give certain requested instructions; but, with the exception of the one quoted in the statement of the case, all are fairly covered by the general charge. The request quoted should have been given: Joyce, Law of Nuisance, § 200.

4. The objection that the issuance of the warrant of abatement was improper, because there is no prayer *495for abatement in tbe complaint, is not well taken: Rutenic v. Hamaker, 40 Or. 444, 457 (67 Pac. 192).

Tbe judgment of tbe Circuit Court will be reversed, and tbe cause remanded to tbe Circuit Court for a new trial. Reversed. .

Mr. Chide Justice Moore, Mr. Justice Benson and Mu. Justice Burnett concur.