Emory v. Hazard Powder Co.
| Citation | 22 S.C. 476 |
| Parties | EMORY v. THE HAZARD POWDER COMPANY. |
| Decision Date | 21 April 1885 |
| Court | South Carolina Supreme Court |
1. Causes of action and remedies distinguishcd.
2. The insertion of two or more demands for relief in a complaint is not a misjoinder. When therefore a complaint demanded damages for a nuisance, and an injunction to restrain it, the Circuit judge committed no error in refusing to require the plaintiff to elect between these two remedies.
3. The admission of testimony which was introduced without objection cannot be made a ground of exception.
4. Under the allegations of a complaint that the life of plaintiff and her family were in danger from the explosion of defendant's powder magazine near by, evidence in plaintiff's behalf as to the construction and management of the magazine is competent and pertinent.
5. A matter may be a nuisance although it injuriously affects only one household. The judge therefore properly refused to charge " that if the jury find that the site of the powder magazine is such as to cause danger to the fewest persons, at the same time affording an accessible depot of supply, they must find for the defendant."
6. There is no error in refusing a request to charge where the matter so requested is substantially stated in the general charge.
7. The complaint made no allegation that defendant's magazine or powder were carelessly kept, but did allege that the magazine endangered the life of plaintiff and her family Held , that the judge did not err in refusing to charge that the jury must consider the case as if the powder was kept with the greatest discretion and security.
8. In a law case questions of fact cannot be reviewed by this court.
9. This court declined to declare error in a charge which authorized the jury to find punitive damages where the only objections raised to such charge were that there was no testimony in the case to which it was applicable, and that its tendency was to inflame the minds of the jury against the defendant.
Before KERSHAW, J., Charleston, February, 1884.
This was an action by Ann H. Emory against the Hazard Powder Company, commenced December 13, 1882. The opinion sufficiently states the case. The judge charged the jury as follows:
Gunpowder is a legitimate article of commerce. Therefore the storing and the keeping of gunpowder in a magazine, properly constructed, is a lawful business and not in itself a nuisance. Whether the particular magazine is or is not a nuisance must be determined by the circumstances of the case. When trade in a dangerous article, such as gunpowder, assumes large proportions, storehouses for the proper keeping of such dangerous articles become necessary for the safety of the community. Yet though necessary, the erection of such structures as to the location and manner of construction must be consistent with the rights of person and property of other persons. No one has the right, in pursuit of his own private business, to injure another in his person or property.
If the defendants have erected and maintained a powder magazine and kept explosives therein in such a manner, and in such a location, and of such a character as manifestly to injure the lives of the plaintiff, her family, or her servants, residing on her own premises, then the action would properly lie against the defendants as for a nuisance; as in this case. In order to establish the plaintiff's right of action it is necessary that you should find that either manifest danger or actual injury to the plaintiff, in her person or property, has resulted from the causes alleged in the complaint, and if there be neither apparent danger nor actual damage resulting from such causes, the verdict should be for the defendants. If, however, you find that such manifest danger, or actual damage to person or property has resulted to the plaintiff from the acts of the defendants complained of, your verdict should be for the plaintiff.
If you find for the plaintiff, you should find the actual damage done to her person or property, reasonably attributable to the causes alleged; and also such reasonable damages as you may think proper to compensate her for any mental fear or suffering which naturally and reasonably resulted from the alleged wrongful acts of the defendant. If you find anything in the case that shows a wanton or reckless disregard of the plaintiff's rights, amounting to criminality on the part of the defendants, you might add to your verdict such punitive damages as you think proper, to punish the defendants for such criminal acts, if any. Should you find for the plaintiff, your verdict should be for a given sum of money, expressed in writing, and written upon the complaint, and signed by the foreman. If you find for the defendant, you will simply say: " We find for the defendant."
Messrs. McCrady, Sons & Bacot , for appellant.
Messrs. Lord & Hyde , contra.
The plaintiff, respondent, instituted the proceeding below, alleging, as a cause of action, that defendant, appellant, had erected upon its premises a powder magazine, within two hundred yards of the dwelling of respondent, and within twenty-five feet of the road leading to a ship yard, in which magazine the appellant intended to keep in store large quantities of gunpowder; that said magazine was erected, notwithstanding the respondent had given written notice that she objected to its location so near her dwelling. And in the 6th paragraph of the complaint, she alleged that the erection and maintaining of a powder magazine, on the premises aforesaid, greatly endangered the lives of herself, her family, and servants from explosion, and also the lives and property of the public travelling on said road; and she demanded judgment: 1st. That said nuisance be removed. 2nd. That she recover, of the defendant, five thousand dollars ($5,000) damages caused thereby, and the costs of action. The defendant, answering, denied the allegation of paragraph VI.; and for further defence alleged that said powder magazine was erected with the knowledge and consent of all the adjacent proprietors, save the plaintiff, whose dwelling is much further removed from its site, than that of one who consented to its erection.
The cause came on for trial before his honor. Judge Kershaw, at the February term for Charleston County, when the counsel for the defence moved that the plaintiff be required to elect whether she would sue for damages, or for an injunction against a continuance of the alleged nuisance, which motion, after argument, was refused. The trial then proceeded, ending with a verdict for the plaintiff in the sum of $500. The defendant appealed upon the following nine exceptions:
I. " Because his honor erred, in that he refused the defendant's motion to require the plaintiff to elect whether she would proceed for damages, or for injunction.
II. " Because his honor erred, in that he allowed the plaintiff to introduce testimony as to injury to her health, claimed to have been produced by the proximity of the defendant's powder magazine, when there was no allegation in the complaint charging such injury.
III. " Because his honor erred, in that he allowed the plaintiff to introduce testimony as to the construction of the magazine, and the conduct of the business, when there was no allegation in the complaint that the magazine was improperly constructed, or that the business was improperly conducted.
IV. " Because his honor erred, in that he refused to charge the jury as the defendant requested, ‘ that if the jury in this case find that the site of the magazine is such as to cause damage to the fewest persons, at the same time affording an accessible depot of supply, that they must find for the defendant.’
V " Because there was no proof that the proximity of the magazine was dangerous to the lives of the...
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