Schatz v. Abbott Laboratories, Inc.

• Decision Date: 30 March 1972
• Docket Number: No. 44478,44478
• Citation: 281 N.E.2d 323,51 Ill.2d 143
• Parties: , 3 ERC 1989, 2 Envtl. L. Rep. 20,251 Sidney SCHATZ et al., Appellants, v. ABBOTT LABORATORIES, INC., Appellee.
• Court: Illinois Supreme Court

Page 323

281 N.E.2d 323

51 Ill.2d 143, 3 ERC 1989, 2 Envtl.

L. Rep. 20,251

Sidney SCHATZ et al., Appellants, v. ABBOTT LABORATORIES, INC., Appellee.

No. 44478.

Supreme Court of Illinois.

March 30, 1972.

Conzelman, Schultz, O'Meara, & Snarski, Waukegan (Murray R. Conzelman, Waukegan, of counsel), for appellant.

John F. Grady, Waukegan, for appellees.

GOLDENHERSH, Justice.

In this case, filed in the circuit court of Lake County, plaintiffs seek to recover damages for loss of use and enjoyment of a residence and for damages suffered by a movie theatre business as the result of noxious odors emitted from defendant's manufacturing plant in North Chicago. The circuit court, after a bench trial, entered judgments in the amount of $3,750 in favor of plaintiffs Sidney Schatz and Lois Schatz, for the loss of use of their residence, and in favor of plaintiffs Sidney Schatz and Frances Klein in the amount of $15,000 for damages sustained to their theatre business. Defendant, Abbott Laboratories, Inc., appealed, and the Appellate Court for the Second District reversed the judgment in favor of the plaintiffs Schatz and remanded their case for further proceedings, and reversed outright the judgment in favor of the plaintiffs Schatz and Klein (Schatz v. Abbott Laboratories, Inc. (Ill.App.1971), 269 N.E.2d 308). We allowed plaintiffs' petition for leave to appeal. The facts are accurately stated in the opinion of the appellate court and will be restated here only to the extent necessary to this opinion.

Prior to discussion of the substantive issues it is necessary to decide a question of procedure. Defendant contends that this court may not review the appellate court's reversal of the judgment in favor of the plaintiffs Schatz, and the remandment of their cause, for the reason that the petition for leave to appeal seeks to appeal only from the reversal of the judgment in favor of plaintiffs Schatz and Klein and does not petition for leave to appeal from the reversal and remandment of the Schatz' judgment. Defendant argues that under our Rule 318 Ill.Rev.Stat.1971, c. 110A, § 318 (43 Ill.2d R. 318) only an appellee, respondent or co-party may seek relief other than that prayed in the petition for leave to appeal.

The Schatzes contend that under Rule 318(a) they may seek review of the appellate court's ruling in this proceeding. Our Rule 366(a) (43 Ill.2d R. 366(a)) provides that 'In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, * * * (5) give any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, that the case may require.' Upon this record we are able to and deem it desirable to make a complate adjudication of the issues and, therefore, all claims of error will be reviewed in this proceeding.

We consider next the matter of the reversal of the judgment and remandment of the cause involving damages sought by the plaintiffs Schatz. The record shows that offensive odors enanating from defendant's plant seriously affected the use and enjoyment of their home, that Mrs. Schatz suffered unpleasant effects, on occasion was required to leave her home overnight and stay with relatives, and that the offensive odors interfered with their entertainment of friends and guests. It is plaintiffs' contention that the trial court properly awarded damages for their loss of use and enjoyment of their home and that the appellate court erred in holding the judgment must be reversed on the ground that the trial court included in the amount awarded sums for expenditures which are not supported by the evidence. It is defendant's position that the trial court erred in including in the judgment the items discussed by the appellate court, and erred further in awarding damages to cover a seven-year period when it should have considered only the five-year period immediately preceding the filing of the suit.

This court, in Illinois Central R.R. Co. v. Grabill (1869), 50 Ill. 241, laid down the rule that when premises are occupied by the owner who suffers injury by reason of a nuisance, the measure of damages is the injury and annoyance of the plaintiff while occupying the premises and the amount recoverable 'cannot be gauged by any definite rule.' (50 Ill. 241, 246.) In Fairbank Co. v. Nicolai (1897), 167 Ill. 242, 47 N.E. 360, the court held that when the owner has resided on the property during the period when it was damaged by a nuisance his damages are measured by his discomfort and the deprivation of the healthful use and comforts of his home. (See also Racine v. Catholic Bishop of Chicago (1937), 290 Ill.App. 284, 8 N.E.2d 210; Cook v. City of Du Quoin (1930), 256 Ill.App. 452.) Even assuming that the trial court, as argued by defendant, improperly considered expenditures made by plaintiffs for insulation and air conditioning of their home, the evidence properly before the court was sufficient to sustain the judgment. We hold, therefore, that the appellate court erred in reversing the judgment in the amount of $3,750 entered in favor of the plaintiffs Schatz.

We consider now the reversal of the judgment in favor of the plaintiffs Schatz and Klein. The appellate court found that although there was evidence adduced 'which would sustain a finding that noxious odors entered the building and caused unpleasant...