Carroll Springs Distilling Co. of Baltimore City v. Schnepfe

• Decision Date: 19 November 1909
• Citation: 74 A. 828,111 Md. 420
• Parties: CARROLL SPRINGS DISTILLING CO. OF BALTIMORE CITY v. SCHNEPFE.
• Court: Maryland Court of Appeals

74 A. 828

111 Md. 420

CARROLL SPRINGS DISTILLING CO. OF BALTIMORE CITY

v. SCHNEPFE.

Court of Appeals of Maryland.

Nov. 19, 1909.

Appeal from Superior Court of Baltimore City; Henry Stockbridge, Judge.

Action by Charles H. Schnepfe against the Carroll Springs Distilling Company of Baltimore City. Judgment for plaintiff, and defendant appeals. Reversed, and new trial awarded.

Plaintiffs eighth prayer was as follows: "The plaintiff prays the court to instruct the jury that every man is entitled to the comfortable enjoyment of his own home, and if they shall find from the evidence and under the instructions of the court that the plaintiff is entitled to recover in this action, and that the plaintiff's home was rendered greatly uncomfortable and inconvenient by the misconduct of the defendant, then they should award the plaintiff such sums as will compensate him for the injury. While there is no arithmetical rule for estimating thedamages, yet the causing of such inconvenience and discomfort to the plaintiff would be an injury in the eye of the law, the extent of which the jury may measure in damages, in view of all the facts and circumstances of the injury." Granted.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, and BURKE. JJ.

Wm. P. Lyons, for appellant. August W. Schnepfe, for appellee.

BURKE, J. This is the defendant's appeal from a judgment rendered against it in the superior court of Baltimore city. The suit was one in tort, and the declaration contained five counts, each of which set out a distinct cause of action. The first count alleged that the defendant wrongfully caused to issue and proceed from a certain distillery carried On by it large quantities of offensive, poisonous, and unwholesome smoke and other vapors and noxious matter, which spread and diffused themselves over and upon certain land of the plaintiff, and which settled upon and were deposited upon the soil and surface of said land, whereby the trees, hedges, crops, lands, and dwelling of the plaintiff were damaged and deteriorated in value. The second count alleged that the defendant, its agents, and servants broke and entered the plaintiff's close, and erected partly upon the land of the plaintiff a large slop tank. The third count charged that the defendant wroDgfully caused to issue from the slop tank aforesaid large quantities of offensive, poisonous, and unwholesome odors, which spread and diffused themselves over and upon the lands of the plaintiff, corrupted the air, and which settled upon the soil and surface of said land. The fourth count alleged that the said slop tank daily overflowed over and upon the premises of the plaintiff, and formed a stagnant pool, injuring the trees, hedges, and lands and dwellings of the plaintiff. The fifth count charged that the defendant company dug directly adjoining the dwelling house of the plaintiff a large pit, and so graded and paved its lot of ground as to cause all the water that fell upon its lot to run into and accumulate in the pit, and that it failed to drain the pit, and in consequence thereof the accumulation of water in the pit passed through and inuto the cellar of the plaintiff's dwelling, and thereby caused it to become damp and unfit for habitation. Each count, except the second, concluded with the averment that by reason of the wrong therein stated the plaintiff was prevented from having so healthy and beneficial use and occupation of his dwelling and lands as he otherwise would have had. The case proceeded to trial upon the issue joined upon the defendant's plea of not guilty. At the close of the whole case, at the instance of the defendant the court instructed the jury that there could he no recovery under the second count, nor could there be any recovery for permanent injury or permanent diminution in the value of the plaintiff's lot and houses, nor could there be a recovery of punitive damages, as there was no evidence upon which such damages could be allowed. The case, being one of a temporary or abatable private nuisance, is to be governed by the well-settled rules applicable to an action of that character.

It is unnecessary, in order to dispose of the legal questions presented, to discuss the evidence at much length. A statement of its general purport and effect will be sufficient. The plaintiff is the owner of a lot situated on Frederick avenue in Baltimore city. This lot is improved by two dwelling houses, in one of which the plaintiff resided with his family during the continuance of the alleged nuisance, and in the other, at the time of the trial, the plaintiff's wife conducted a dry goods business. The defendant's property adjoined the plaintiff's on the west, and fronts 100 feet on Frederick avenue, with an even depth of 270 feet. Upon this property it has a plant for the distillation of spirits and the manufacture of yeast. A smaller plant for the conduct of a like business was operated upon the premises by a Mr. Weitheger prior to 1900, in which year the defendant bought the business and somewhat enlarged the plant, and in 1907 it purchased additional land to be used in connection with its business. The distillery of Mr. Weitheger was a small affair, consuming about a ton of coal a day. He had a small slop tank located about in the same place as the one complained of in the declaration, but this tank caused no injury to the plaintiff's property. After the defendant acquired the property, it built a new and a larger slop tank. In the rear of the defendant's lot, about 34 feet from the plaintiff's property, are erected two smoke stacks 75 feet high, and placed on the top of a building 15 feet in height. There was no evidence offered of any injury to trees, hedges, herbage, and crops as alleged in the declaration, nor was there any evidence of loss of sales or rent; but there was evidence tending to support all the other allegations of injury, except that stated in the second count. This, however, was controverted by much evidence produced on behalf of the defendant. It was the exclusive province of the jury to determine these disputed questions of fact, and, whether its decision was right or wrong, this court has no power to review it.

During the progress of the trial eight exceptions were reserved by the defendant. Seven of these related to the admission of evidence, and one to the ruling on the prayers. The court, over the objection of the defendant, permitted the plaintiff to offer evidence as to the value of the property before and after the injury complained of. As the nuisance was a mere temporary one, this ruling, which is the matter complained of in the first, second, third, fourth, and fifth exceptions, was erroneous; but, inasmuch as the court subsequently...