Braun v. Iannotti
| Decision Date | 03 December 1934 |
| Docket Number | No. 7526.,7526. |
| Citation | 175 A. 656 |
| Parties | BRAUN v. IANNOTTI. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; G. Frederick Frost. Judge.
Trespass on the case by George Braun against Michael Iannotti. The trial justice directed a verdict for defendant, and plaintiff excepts.
Exception sustained, and case remitted for new trial.
Harlow & Boudreau, of Providence, for plaintiff.
Benjamin Cianciarulo and Edward A. Capomacchio, both of Providence, for defendant.
This is an action of trespass on the case to recover damages caused by smoke from the furnace in defendant's greenhouse which is located near the plaintiffs dwelling house. At the conclusion of the testimony the trial justice directed a verdict for the defendant on the ground that plaintiff had failed to produce evidence showing that the damage was the result of negligence of the defendant; and the case is before us on plaintiff's exception to such direction.
Counsel for the defendant argued the motion for a directed verdict on the theory that the action was one of negligence. Counsel for the plaintiff failed to bring to the court's attention the fact that the gist of the action was nuisance and not negligence, and the ruling was the result of an erroneous assumption that the action was based on an allegation of negligence.
The writ and also the declaration designated the action as one of "trespass on the case" without further description. The declaration alleges that the defendant "wrongfully, carelessly, negligently and in an improper manner caused smoke, soot and other foreign matter from fires and furnace of said defendant located in premises adjoining said plaintiff, to blow against and come in contact with premises of plaintiff by reason of the smokestack erected in such a careless and negligent manner, without being a sufficient distance from plaintiff's premises, so that on, to wit, the 1st day of October, 1931, and divers other times thereafter, said plaintiff's premises were greatly damaged and the paint was greatly damaged and ruined on the exterior of said premises and said premises were rendered unfit for occupation and said plaintiff has been unable to obtain rents or profits therefrom and said plaintiff has and will be required to make repairs on account of said damage and hath lost gains and profits and been otherwise greatly damaged * * *."
The facts, of which the plaintiff complains in this declaration, constitute a nuisance. Wood, Law of Nuisances, § 507; Aidrich v. Howard, 8 R. I. 246; Blomen, Frederickson v. N. Barstow Co., 35 R. I. 198, 85 A. 924, 44 L. R. A. (N. S.) 236. The declaration does not allege that the facts complained of constitute a nuisance. Such an allegation is unnecessary.
In Sullivan v. Waterman, 20 R. I. at page 375, 39 A. 243, 244, 39 L. R. A. 773, this court said: ...
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Morgan v. High Penn Oil Co.
...Am.St.Rep. 716; Rose v. Standard Oil Co. of New York, 56 R.I. 272, 185 A. 251, reargument denied, 56 R.I. 472, 188 A. 71; Braun v. Iannotti, 54 R.I. 469, 175 A. 656; Frost v. Berkeley Phosphate Co., 42 S.C. 402, 20 S.E. 280, 26 L.R.A. 693, 46 Am.St. Rep. 736; Cuffman v. City of Nashville, 2......
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State v. Lead Industries, Ass'n, Inc.
...emitted noxious odors and required that large quantities of "swill" be transported and dumped onto property); Braun v. Iannotti, 54 R.I. 469, 469-70, 175 A. 656, 657 (1934) (greenhouse that continually emitted smoke); Blomen v. N. Barstow Co., 35 R.I. 198, 199-200, 211, 85 A. 924, 924-25 (1......
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State ex rel. Hunter v. Johnson & Johnson
...in degree, "and reasonableness in this respect is a question of fact").42 Wood , 443 A.2d at 1247 (citing Braun v. Iannotti , 54 R.I. 469, 471, 175 A. 656, 657 (1934) ).43 Wood , 443 A.2d at 1247.44 See supra note 19 and the effect of a sub silentio issue in a court opinion.45 Oldham, supra......
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Branch v. Western Petroleum, Inc., 17178
...liability, liability in nuisance is predicated upon unreasonable injury rather than upon unreasonable conduct. Braun v. Iannotti, 54 R.I. 469, 471, 175 A. 656, 657 (1934). Thus, plaintiffs may recover in nuisance despite the otherwise nontortious nature of the conduct which creates the Id. ......