Duncanson v. City of Fort Dodge
| Decision Date | 16 November 1943 |
| Docket Number | 46352. |
| Citation | 11 N.W.2d 583,233 Iowa 1325 |
| Parties | DUNCANSON v. CITY OF FORT DODGE. |
| Court | Iowa Supreme Court |
Mitchell & Mitchell, of Fort Dodge, for appellant.
Breen Breen, & McCormick, of Fort Dodge, for appellee.
Plaintiff's petition as amended states: Plaintiff owns a home for himself and family on the outskirts of Fort Dodge; for some time the defendant, City of Fort Dodge, has operated a sewage disposal plant north and west of plaintiff's home, which produces and distributes foul, nauseating and vile odors; when the breeze is from the northwest, the air in and about plaintiff's home becomes sickening and nauseating causing serious inconvenience and discomfort to plaintiff and members of his family. The petition also states that the defendant city collects and hauls garbage to a dump on land leased by Floyd Garrett, situated south of plaintiff's home; when the wind is from the south, the odor from burning garbage is carried onto plaintiff's premises causing discomfort and nausea to plaintiff and members of his family. The prayer was for damages in the sum of $1,200 because of such inconvenience and discomfort.
Defendant filed a motion to require plaintiff to separate the allegations of his petition into counts, one as to the sewage disposal plant, the other as to the garbage dump. The motion was overruled. The record also shows that defendant served a notice on the U. S. Gypsum Co., as owner of the property leased to Garrett where the garbage dump was operated, to appear and defend the action.
Defendant's answer admitted the operation of the sewage disposal plant since 1938, but asserted that the plant was planned and constructed by competent engineers and the plans were approved by the State Board of Health and the city council. The answer also admitted that garbage is collected by the city and is delivered by it to Garrett's farm but asserted that defendant has no control over the garbage dump. The answer denied that either project was a nuisance.
The cause was tried to a jury. Because of the nature of the questions presented for our determination, it is not necessary to review at length the testimony introduced. Such as is material will be referred to later. At the close of the evidence, defendant made a motion for a directed verdict. The motion was overruled. In submitting the case to the jury, the court submitted two special interrogatories, which were answered as follows: In accordance therewith, the verdict was for plaintiff in the sum of $400. A motion for new trial and exceptions to instructions were overruled. Defendant appeals to this court asserting four assignments of error.
I. The first assignment of error challenges the overruling of defendant's motion to separate into counts. Reliance is had upon Section 11112, Code 1939, which provided "Where the petition contains more than one cause of action, each must be stated wholly in a count or division by itself, and must be sufficient in itself; but one prayer for judgment may include a sum based on all counts seeking a money remedy." Defendant's argument assumes that two causes of action were asserted. Plaintiff challenges that assumption and contends that but one cause of action was stated. We are disposed to the view that the petition does state two causes of action and that the court erred in overruling the motion to separate into counts. However, we are not warranted in reversing the judgment unless substantial prejudice resulted from the error. Defendant's argument assumes that such prejudice resulted. We cannot agree with such assumption.
Ordinarily, a motion to separate into counts, in a law action, is resorted to preliminary to asserting that there was a misjoinder of causes of action, or to securing separate trials of the various causes of action. Here there was no misjoinder because Section 10960, Code 1939, provided: "Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, if held by the same party, and against the same party, in the same rights, and if action on all may be brought and tried in that county, may be joined in the same petition." There is no claim of misjoinder here.
Neither was there any demand for separate trials under Section 10961, Code 1939. Even had there been, such relief is discretionary and the trial court has a wide discretion. Brake v. Central Service Co., Iowa, 7 N.W.2d 184. There is evidence that defendant served notice on the U. S. Gypsum Co. to appear and defend the action as it pertained to the garbage dump. The special interrogatories protected defendant so far as this phase of the case was concerned. See, also, Division III of this opinion. In the statement of the issues the court stated the allegations of the petition, insofar as they pertained to the sewage disposal plant, in one paragraph and those pertaining to the garbage dump in a separate paragraph. Separation into counts would have produced the same result. The court's instructions and the special interrogatories required the jury to consider the two claims separately. The prayer for damages did not make any allocation as between the two claims but the amount allowed by the jury as to each was obviously less than the amount that would have been demanded as to each had there been such allocation. We therefore hold that, conceding that the ruling on the motion to separate into counts was erroneous, it was not so prejudicial as to warrant or require a reversal at our hands.
II. Defendant's second assignment of error challenges the overruling of the first ground of the motion for directed verdict which was that "there is no evidence of damage to plaintiff's property or to the rental value thereof that could be submitted to the jury, *** no evidence *** of any expense connected with any alleged sickness or discomfort," no proper basis for a verdict for plaintiff. It will be noted that the assignment does not challenge the competency, credibility or sufficiency of the evidence that the sewage disposal plant and garbage dump constituted nuisances. In effect, the contention is that granting that they constituted nuisances for which recovery might be had, nevertheless the case should be dismissed because a verdict for plaintiff could not be based solely on evidence of inconvenience and discomfort suffered by plaintiff and his family by reason of noxious odors produced by the nuisances. Defendant cites Wesley v. City of Waterloo, Iowa, 8 N.W.2d 430; Stovern v. Town of Calmar, 204...
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