Lipnik v. Ehalt

• Citation: 132 N.E. 410,76 Ind.App. 390
• Decision Date: 11 October 1921
• Docket Number: 10,932
• Parties: LIPNIK v. EHALT
• Court: Court of Appeals of Indiana

132 N.E. 410

76 Ind.App. 390

LIPNIK v. EHALT

No. 10,932

Court of Appeals of Indiana

October 11, 1921

From Clark Circuit Court; William Ridley, Special Judge.

Action by Adam Ehalt against Nathan Lipnik. From a judgment for plaintiff, the defendant appeals.

Reversed.

George H. Hester, for appellant.

Jonas H. Howard and Jewett & Bulleit, for appellee.

OPINION

BATMAN, J.

This is an action by appellee to recover damages, alleged to have been sustained by reason of the destruction by appellant of a certain frame building which appellee was occupying as a tenant. The complaint is in a single paragraph. Appellant filed his respective motions to strike out certain parts thereof, and to make the same more specific, each of which was overruled. He then filed a demurrer thereto for want of sufficient facts, which being overruled, was followed by the filing of an answer consisting of six paragraphs. The first is a general denial. The second alleges that the frame building, mentioned in the complaint as having been destroyed by appellant, was not located upon the premises leased by appellee, and was not appurtenant thereto; that it did not belong to appellee or his lessor, and that neither of them had any rights in or to the same. The third paragraph alleges that the frame building in question was located upon a strip of ground, ten feet in width, in which appellant held an easement, as a means of ingress and egress to and from the rear of a building owned by him, adjacent to the premises occupied by appellee as a tenant; that said frame building alleged to have been destroyed, was located upon said easement, and maintained by appellee and his lessor thereon that it was necessary to remove the same in order to permit appellant to enjoy his rights in and to his said easement, and that in so doing he did no act not necessary to preserve his said rights. The fourth, fifth and sixth paragraphs are based on certain ordinances of the city of New Albany, establishing fire limits therein, prohibiting the erection and maintenance of frame buildings within the same, and providing penalties for the violation thereof. Each alleges in substance, among other things, that the building, alleged to have been destroyed by appellant, was a frame building, erected and maintained after the passage of the ordinance or ordinances on which such paragraphs are based, and in violation of the provisions thereof, and that by reason of such fact that neither appellee nor his lessor had any right at any time to erect and maintain said building; that said frame building was located in a section of the city which was closely built-up and devoted to business purposes; that it was built and maintained against a brick building which adjoined another brick building, owned and occupied by appellant as a business house, and as a residence for his family; that by reason of the material from which it was constructed, and its location, it was a menace to said adjacent buildings, including the one owned and occupied by appellant, by reason of the danger of fire originating therein, or being spread thereby; that more than two weeks prior to the happening of appellee's alleged grievance he notified appellee, and the owner of said building, to remove the same, but they failed and refused so to do; that appellant removed said building without any malice or desire to injure appellee, and only to protect his own rights, and for the safety of himself and his property. A demurrer was filed and sustained to said fourth and fifth paragraphs of answer. Replies in general denial were filed to the remaining paragraphs of answer, except the first. The cause was submitted to a jury for trial, which returned a verdict for appellee in the sum of $ 150, together with answers to certain interrogatories. Appellant filed a motion for judgment on these answers, notwithstanding the general verdict, and also a motion for a new trial, each of which was overruled. From a judgment in favor of appellee on the general verdict, appellant is prosecuting this appeal.

Appellant's contention that the court committed reversible error in overruling his motion to strike out parts of the complaint cannot be sustained, as it is well settled that a judgment will not be reversed because of an adverse ruling on a motion to strike out a part of a pleading. Woodhams v. Jennings (1905), 164 Ind. 555, 73 N.E. 1088; Butt v. Iffert (1909), 171 Ind. 554, 86 N.E. 961; Brown v. Langner (1900), 25 Ind.App. 538, 58 N.E. 743. We cannot sustain appellant's contention that the court erred in overruling his motion to make the complaint more specific, as it is well settled that the overruling of such a motion will not constitute reversible error, unless it is shown affirmatively to have injured appellant, and there is no such showing in this case. Leimgruber v. Leimgruber (1908), 172 Ind. 370, 86 N.E. 73, 88 N.E. 593; Cleveland, etc., R. Co. v. Wolf, Admr. (1920), 189 Ind. 585, 128 N.E. 38. Appellant's contention that the judgment in this cause should be reversed, because the court erred in sustaining the demurrer to his fourth and fifth paragraphs of answer cannot be sustained. The record shows that the court admitted evidence of all facts alleged in each of said paragraphs of answer, and at appellant's request submitted interrogatories to the jury pertaining thereto. It further appears that the only facts alleged in said paragraphs of answer, which were available to appellant as a defense under the evidence, were afterwards set up in his sixth paragraph of answer to which no demurrer was filed. Under these circumstances the ruling of the court on the demurrer in question was harmless.

Appellant contends that the court erred in overruling his motion for judgment on the answers to the interrogatories, notwithstanding the general verdict. In determining this question, we are only permitted to consider the pleadings, the answers to the interrogatories, and the general verdict. Chicago, etc., R. Co. v. Schenkel (1914), 57 Ind.App. 175, 104 N.E. 50. While the answers to the interrogatories disclose that the building in question was located in a district where wooden buildings were prohibited by certain ordinances of the city of New Albany, there is no finding as to where such building was located with reference to appellant's property, or that he sustained any special injury by reason of its existence in violation of such ordinances. By reason of this fact we conclude, for reasons that will more fully hereinafter appear, that the court did not err in overruling said motion.

Appellant contends that the verdict of the jury is not sustained by the evidence. This contention is based on a claim that the frame building in question was a nuisance, which he had a right to abate. The uncontradicted evidence shows, that continuously since 1886 the city of New Albany, Indiana, has had in force ordinances, which prohibited the erection and maintenance of wooden buildings within certain portions of its corporate limits; that the building in question was a small cheaply-constructed wooden shed, which had been erected within such limits about 1899, and had been maintained therein continuously ever since; that appellant owned two brick buildings, one of which he occupied, in the immediate neighborhood of said wooden building, and so near thereto as to endanger them from fire originating therein, or communicated thereto. Under these facts, two questions are presented for our determination, viz.: (1) Was said wooden building a nuisance? (2) and if so, Did appellant have a right to abate the same by his own act? An examination of the several statutes in force continuously since 1873, conferring powers upon cities, discloses that the city of New Albany was authorized to enact the ordinances in question. This being true, the erection and maintenance of the wooden building, alleged to have been torn down by appellant, so near to his property as to endanger the same from fire therefrom, constituted a nuisance. Baumgartner v. Hasty (1885), 100 Ind. 575, 50 Am. Rep. 830; Miller v. City of Valparaiso (1894), 10 Ind.App. 22, 37 N.E. 418; Kaufman v. Stein (1894), 138 Ind. 49, 37 N.E. 333. As said in the case first cited: "A wooden building is not in itself a nuisance, but when erected in a place prohibited by law, and where it endangers the safety of adjoining property, it may become a nuisance. * * * Where therefore, a valid municipal ordinance prohibits the location of wooden buildings within certain limits, and it appears as it does here, that the building is located within the prohibited district, and endangers the safety of surrounding property, it may properly be treated as a public nuisance, and as such abated." We are clearly of the opinion that the first question presented requires an affirmative answer. It is well settled that an individual, who is aggrieved by the existence of a private nuisance, may abate it by his own act, provided he can do so without a breach of the peace, and in like manner may abate a public nuisance, where he suffers some special injury therefrom. 29 Cyc 1214; 20 R. C. L. 489-491; 1 Am. and Eng....