Givens v. Van Studdiford

• Decision Date: 27 November 1877
• Citation: 4 Mo.App. 498
• Parties: JAMES GIVENS, Appellant, v. HENRY VAN STUDDIFORD, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 498

JAMES GIVENS, Appellant,

v.HENRY VAN STUDDIFORD, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 27, 1877.

1. Where the owner knowingly permits a brothel to be established and maintained in his house, which adjoins a tenement of another, by reason of which the latter's tenants leave, and his property is depreciated in value, the former is liable to the latter for the special damage thereby caused him, over and above the wrong and injury done to the general public.

2. In such a case the measure of damages is the difference in the selling value of the property and the loss of rent occasioned by such nuisance.

3. In ascertaining these facts, all circumstances that would show a depreciation in value should be considered, and the damage recovered must be the actual depreciation shown to be caused by the existence of the nuisance.

4. Where it is shown that, after defendant's house was occupied as a brothel, other houses of the same character were opened in the same neighborhood, so that the damage caused by others cannot be separated from that caused by defendant, he will be liable for all such damage, if the natural and probable consequence of his illegal act was to cause the injury complained of.

5. It is error to give an instruction where there is no evidence in the case upon which to base it, though it be abstractly correct.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

W. G. RAINEY, for appellant: Damages may be recovered for keeping or creating a nuisance.-- Gleason v. Guy, 4 Conn. 418; Call v. Buttrick, 4 Cush. 345; Scott v. Bay, 3 Md. 431; Hodges v. Hodges, 5 Metc. 205; Ray v. Sellers, 1 Duv. 254; Pillsbury v. Moore, 44 Me. 154; 30 Ala. 318; 12 N. Y. 486. The rule of damages is the injury actually sustained at the commencement of the suit.--1 Hill. on Torts, 602, sec. 16; Field on Dam., secs. 45, 74, 734, 748; Allison v. Chandler, 11 Mich. 442; Illinois Central R. Co. v. Grabill, 50 Ill. 241; Ottoway Gas-light Co. v. Graham, 28 Ill. 77; Scott v. Bay, 3 Mo. 432. See these cases. McKeon v. Lee, 4 Robt. 450. Where several parties contribute in causing the damages, and the damages cannot be separated, each is liable for the whole damages.-- Boyd v. Watt, Sup. Ct. Ohio, 3 Cent. L. J. 756; Stone v. Dickerson, 5 Allen, 29; Colgrove v. New York & New Hampshire R. Co., 20 N. Y. 492.

H. A. HAEUSSLER, for respondent: “Where property, at the demise, is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happen during such possession, the owner is not liable.”-- Owings v. Jones, 9 Md. 108; Pickard v. Collins, 23 Barb. 444; Hillard v. Richardson, 3 Gray, 349; Earle v. Hall,2 Metc. 353; Scammon v. Chicago, 25 Ill. 424. “The owner is not responsible for enabling the tenant to commit a nuisance if he pleases.”--1 Add. on Torts, 197, 198; Durant v. Palmer, 27 N. J. L. 544; Beavers v. Trimmer et al., 25 N. J. L. 97. Where the vicinity has already lost its character by reason of other nuisances, plaintiff cannot recover.-- Gilbert v. Showerman, 23 Mich. 448; 1 Add. on Torts, 257, 258; 5 Metc. 8; Rich v. Basherfield, 56 C. B. 783-805.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages against defendant for permitting a nuisance to be established and maintained on the premises of defendant, adjoining those of plaintiff, by which the value of plaintiff's property, consisting of a valuable residence, was permanently injured, and the rents which would otherwise have been received from the same were lost. The particular nuisance complained of is that the house of defendant was, with his knowledge, and consent, rented to prostitutes, who conducted themselves in an indecent manner, in the house, in full view of the neighborhood. The damages are laid at $25,000. The answer is a general denial. There was a verdict and judgment for defendant; and plaintiff appeals.

The testimony of plaintiff's witnesses was to the effect, that plaintiff purchased, in 1867, a house on Walnut Street, near Sixth Street, in St. Louis; that defendant owned a house on Sixth Street, immediately adjoining; that defendant's house was rented to prostitutes, in 1872; that plaintiff's tenants complained of the nuisance, and that plaintiff notified defendant of the nuisance, and asked him to abate it, which was not done; that the women in defendant's house indecently exposed themselves at the windows; that, since 1872, the house could be rented to no decent family; that, since the date of the commencement of the nuisance, the neighborhood is of bad fame, and many houses in the neighborhood are occupied by prostitutes; that the value of plaintiff's property has depreciated, from the character of the neighborhood, and from the general depreciation in value of real estate throughout the city since the commercial panic of 1873. One witness, a realestate agent, swore that defendant's house was the first property in the neighborhood rented to prostitutes. It appeared that plaintiff bought the house in 1869, for $29,000, at trustee's sale; that he leased it to a railroad company, for five years, the term expiring in January, 1873, a month after which they moved out. After that, it was vacant for a year; was then rented for eighteen months, at about $2,000; and has since been vacant, except that plaintiff has occupied a room there, because he could not rent it to any decent tenant. On December 4, 1875, it was sold for $20,000, under a mortgage given by plaintiff for that amount; and at the date of the trial, was held by plaintiff as lessee, for a term of six months, at a monthly rent of $150, with the privilege of purchasing, at the expiration of the term, for $24,657 and interest. The rental value of the property, at the date of the trial, was $1,800 a year. The defendant introduced no testimony.

At the close of plaintiff's case, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused; and this action of the court was excepted to by defendant.

We do not think that the trial court erred in refusing to take the case from the jury. There was evidence tending to show that a nuisance existed on the premises of defendant, immediately adjoining and in full view of the house owned by plaintiff; and that defendant had notice of its existence, and had failed to remove the same; and that it occasioned special damage to plaintiff. It is true that the evidence also tended to show that the depreciation in value of the plaintiff's property was attributable, in part, to other causes, such as a general depreciation in values, for which plaintiff was in nowise responsible. It was, however, for the jury to determine, from the evidence, under proper directions from the court, what special damage, if any, was caused to plaintiff by the nuisance of which he complains. It is claimed by counsel for defendant that the injury so far arose from the negligence of plaintiff himself that he might, by ordinary care and exertion, have avoided the injury. That would be a good defence if shown; but it was for defendant to show it. It does not appear from any thing in the testimony introduced by plaintiff.

At the instance of plaintiff, the court gave instructions to the effect that the keeping of a bawdy-house is a nuisance, for which damages may be recovered by one suffering a private injury therefrom; that...