Simonetti v. Carlton, 82 So. 553

Simonetti v. Carlton

82 So. 553 | Ala. Ct. App. | 1919

The second count of the complaint as amended, and upon which the cause was tried, states a good cause of action. Adler Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889; Harris v. Randolph Lumber Co., 175 Ala. 148, 57 So. 453; Kyser v. Hertzler, 188 Ala. 658, 65 So. 967; Romano v. B. R. L. P. Co., 182 Ala. 335, 62 So. 677, 46 L.R.A. (N.S.) 642, Ann. Cas. 1915D, 776; Code 1907, § 5198. While a stable is not per se a nuisance, a stable in close proximity to a residence, in a residential section of a city, and kept in such condition that it is unsanitary, and from which noxious and offensive vapors, fumes, smells, odors, and stenches arise, issue, and proceed, during a period of 12 months, and enter into and spread and diffuse themselves over the adjoining residential property, is such a nuisance as will sustain an action. St. James Church v. Arrington, 36 Ala. 546, 76 Am. Dec. 332.

Appellant next insists that the court was in error in permitting the plaintiff's, attorney to ask defendant on cross-examination, "What did they arrest you for?" Whether this action of the court was error is not of moment. The answer, which was not contradicted, was not in the least injurious to defendant, and evidently the defendant took that view of it, as no motion was made to exclude the answer. B. R. L. P. Co. v. McLain, 162 Ala. 660, 50 So. 149.

The appellant insists that the court committed error in giving, at the request of plaintiff, the following charge:

"The measure of damages for damages to plaintiff's home and premises from noxious and disagreeable odors emitted from defendant's stable, if any, was the difference in value of the plaintiff's property for a home within the period of limitation with and without such gases and odors."

The giving of this charge is sustained by the following authorities: B'ham Water-Works Co. v. Martini, 2 Ala. App. 652,56 So. 830; City of Eufaula v. Simmons, 86 Ala. 515,6 So. 47; Jeff. Fertz. Co. v. Rich, 182 Ala. 633, 62 So. 40. And, under the facts in this case, the court was warranted in limiting the recovery as indicated. But we do not mean to hold that, in a proper case on a complaint for maintaining a nuisance, the recovery would be limited to the difference in the value of the property with and without the nuisance.

The appellant next insists that the verdict does not respond to the issues, is void, and that the verdict in the instant case is in that condition. The verdict is in the following language:

"We, the jury, find for the plaintiff and assess his damages at $225 for deterioration of property."

This was a response to every issue in the case, finding for the plaintiff on every material issue necessary to a recovery, and, by specifying the damages to which he was entitled, found for the defendant as to the others. We fail to find any error in the verdict. Besides, the insistence comes too late. Code 1907, § 4143; Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46; Napier v. Elliott, 177 Ala. 133, 58 So. 435.

The evidence in the case was in sharp conflict. We therefore cannot say that the court was in error in refusing to set aside the verdict and to grant a new trial on the ground that the verdict was contrary to the evidence. We find no error in the record, and the judgment is affirmed.

Affirmed. *107