Asia v. Pool

• Decision Date: 08 November 1907
• Citation: 47 Wash. 515,92 P. 351
• Parties: ASIA v. POOL.
• Court: Washington Supreme Court

92 P. 351

47 Wash. 515

ASIA v. POOL.

Supreme Court of Washington

November 8, 1907

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by S. B. Asia against Herman E. Pool. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

Dennis & Burdick, for appellant.

Campbell & Powell, for respondent.

ROOT J.

This is an appeal from a judgment of dismissal in an action for damages brought by appellant against respondent on account of the latter maintaining a market where all kinds of fresh and salt fish, oysters, clams, and crabs were kept in a manner alleged to have been so offensive as to constitute a nuisance. Appellant was operating a mercantile business in a store almost immediately over the rooms occupied by said market, and was engaged in selling dry goods, clothing ladies' furnishing goods, and millinery, and was there in business before respondent located his business below. This action was instituted to have the market declared a nuisance and to abate the same, and for damages. After the commencement of the action and before trial, the respondent quit the premises, and removed his business elsewhere.

The trial was had solely upon the question of right to and amount of damages.

There was considerable conflict in the evidence as to the manner in which the market was conducted. Respondent placed upon the witness stand numerous witnesses, who testified that his business was conducted in a first-class manner, and the premises kept as cleanly and free from odors as could be ordinarily done by a person operating a fish market. Two or three testified they thought it was the best kept market in Tacoma. Most of these witnesses, however, were persons who were not at or in the immediate vicinity of the market continuously, but dropped in from time to time to make purchases or for other purposes. The appellant testified that, on account of the boiling of crabs and the storing of fish and shellfish and maintaining them in an improper manner, very offensive odors came up through the building into his store, permeated his goods, and materially interfered with his trade; that on account thereof the volume of his business fell off largely, although he was unable to state definitely the amount of loss sustained on account thereof. Several of the clerks in his store testified that this odor permeated appellant's store, and at times was so pronounced and obnoxious as to make them sick; that customers spoke of it, and frequently left the store immediately because thereof. Immediately above the store of appellant were the Young Women's Christian Association rooms, the secretary of which organization testified that the odors from the market came up into those rooms to such an extent that the atmosphere was made very disagreeable. One of the city's sanitary inspectors gave testimony as to...