Danker v. Goodwin Mfg. Co.

• Decision Date: 01 December 1903
• Citation: 77 S.W. 338,102 Mo. App. 723
• Parties: DANKER v. GOODWIN MFG. CO.
• Court: Missouri Court of Appeals

77 S.W. 338

102 Mo. App. 723

DANKER v. GOODWIN MFG. CO.

Court of Appeals at St. Louis, Missouri.

December 1, 1903.

NUISANCE — GROUNDS OF RECOVERY — INSTRUCTION—MUNICIPAL ORDINANCES—ADMISSIBILITY.

1. An instruction, in an action for damages for maintaining a nuisance, submitting several grounds of recovery, only one of which has any support in the evidence, thereby contradicting another instruction which submitted but this one ground, is prejudicial error.

2. In an action for damages for maintaining a nuisance, consisting in the operation of a candle factory, whereby offensive smells are created and allowed to permeate plaintiff's premises, municipal ordinances prohibiting the accumulation of decayed substances, prohibiting the boiling of fat or grease in an offensive or unclean or defective manner, and prohibiting the owners of candle, oil, and other factories from allowing their plants to remain unclean, or conducting their business in an annoying manner, are inadmissible on the part of plaintiff.

Appeal from St. Louis Circuit Court; J. A. McDonald, Judge.

Action by August Danker against the Goodwin Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed.

E. S. & E. W. Robert, for appellant. E. E. Wood, for respondent.

GOODE, J.

The defendant company has a factory on the south side of Chouteau avenue, and between Virginia and Rankin avenues, in the city of St. Louis, where it manufactures mining candles and the byproducts, red oil and glycerin. The factory embraces all the north half of the block back to an alley, except 70 feet at the east end. The south end of the block abuts on La Salle street, on the north side of which street is plaintiff's dwelling house. He owns another house on La Salle street, immediately across the alley from defendant's plant, and in the same block. The latter property plaintiff purchased in 1902, nine years after defendant's plant was started, and it has been occupied by members of his family for several years. Plaintiff's two properties face south on La Salle street, the lots extending back toward Chouteau avenue to within 50 feet of defendant's factory. This action is for damages for the maintenance of an alleged nuisance. As plaintiff's case appears on the face of the petition, the nuisance consists of the following facts incident to the operation of the defendant's factory:

First. The discharge of gas, steam, smoke, and noxious vapors, which settle down on plaintiff's home and on his other property, affecting the health of his family and tenants, rendering their homes uncomfortable, and injuring the shrubbery and trees in the yards.

Second. The dissemination of unwholesome smells, which greatly annoy the members of plaintiff's family, and make them sick.

Third. Storing large quantities of glycerin, red oil, and other highly explosive and combustible articles in the factory, to the constant menace of plaintiff, his property, family, and tenants, so that those persons live in fear and dread.

Fourth. The increase of plaintiff's insurance rates by the proximity of said combustible material.

Fifth. The use of old and defective boilers, pipes, digesters, and other machinery in the factory, which apparatus, on account of its defective condition, is dangerous.

Sixth. Carelessly allowing excessive heat to be used in connection with the plant, whereby explosions may be caused, and by which the lives of persons in the neighborhood, including plaintiff, his family and tenants, are endangered. As germane to this averment, the petition pleads a section of the municipal code of the city of St. Louis, which provides for the inspection of boilers and steam-generating apparatus by a city inspector, and forbids the operation of such machinery without a previous inspection, or its operation at a greater pressure than the inspector allows. Another section is referred to, which prohibits the use of such apparatus without the obtention of a certificate of inspection from the inspector of boilers. The charge is made in the petition that the defendant company failed to obtain a certificate of inspection, but operated its plant without one. It is also stated that the machinery was inspected by the city boiler inspector (we suppose, on that officer's own motion), and the defendant notified that certain portions of the apparatus were not safe, and should be repaired before any pressure at all might be used; that the defendant failed to heed that order of the boiler inspector.

Seventh. It is alleged that, within three years before the institution of this action, various explosions occurred in the factory, by which bricks, pieces of iron, wood, grease, and other materials were hurled through the air and about plaintiff's house, causing terror to the inhabitants, and shocking the nerves of plaintiff's wife so that her health was badly affected.

The bulk of the evidence introduced by the plaintiff during the trial went toward proving that the operation of the factory generated noxious gases and vapors, which spread through the neighborhood, and were deleterious to the health of the plaintiff's family—in fact, undermined the health of some of the members of his family. There was much evidence, too, as to the supposed explosions. No municipal ordinance requiring a certificate from the inspector to legalize the operation of the factory seems to have been introduced, and in fact the allegation about the defective machinery, noninspection, etc., remained unproven. But several ordinances of a different character, and not referred to in the petition, were introduced over the objection of the defendant. One of these prohibits...