Menolascino v. Superior Felt & Bedding Co.

Citation313 Ill.App. 557,40 N.E.2d 813
Decision Date01 April 1942
Docket NumberGen. No. 41858.
CourtUnited States Appellate Court of Illinois
PartiesMENOLASCINO v. SUPERIOR FELT & BEDDING CO.

OPINION TEXT STARTS HERE

Appeal from Superior Court, Cook County; Grover C. Niemeyer, Judge.

Action by Felice Menolascino against the Superior Felt & Bedding Company for injuries to plaintiff's health as alleged result of defendant's maintenance of a public nuisance by operating a mattress factory from which lint, dust, and other waste substances were discharged into the air. Judgment for plaintiff, and defendant appeals.

Affirmed. Irving G. Zazove and Samuel J. Winograd, both of Chicago, for appellant.

Richard G. Finn, Gerald T. Wiley, and Halfpenny, Hahn, Wiley & Sakelson, all of Chicago, for appellee.

HEBEL, Justice.

This is an appeal from a judgment for $5,000 entered in the Superior Court of Cook County, on November 20, 1940, in favor of plaintiff and against defendant, Superior Felt and Bedding Company, on a verdict of a jury. The pleadings upon which this action was tried, after some corrections and amendments, appear to have been an original complaint which was filed on November 1, 1935, based on the charge that defendant maintained a public nuisance by operating its mattress factory at 2447 West Roosevelt Road, Chicago, in violation of sections 2395 and 3824 of the 1931 City Code, which specially damaged plaintiff's property, located directly across the street, by reducing its rental value, and also specially damaged the plaintiff by discharging into the air great quantities of lint, dust, fluff, nap, and other dirty and waste substances which rendered the air in the neighborhood unwholesome and unfit to breathe, and that as a result thereof plaintiff's health was injured in that said substances infected her lungs and sinuses, causing her to spend large sums for medical care.

On motion of defendant the original complaint was stricken and on December 29, 1936, plaintiff filed an amended complaint making the same charges and the same allegations of injuries and damages as in the original complaint, the only change being that the ordinances were pleaded in haec verba rather than by reference as was done in the original complaint.

This complaint as amended was stricken and on May 9, 1939, on leave of court, plaintiff filed a second amended complaint based on charges of negligently and carelessly operating the mattress factory from November 1, 1933, to November 1, 1935, so as to discharge into the air, in the vicinity, great quantities of lint, dust, fluff, nap and similar substances, which rendered the air unfit to breathe by persons lawfully in the vicinity, including the plaintiff, which defendant knew or should have known; that during said period plaintiff owned and resided upon the premises located at 2454 West Roosevelt Road in the vicinity of defendant's factory; that plaintiff was in the exercise of due care and as a proximate result of defendant's said carelessness and negligence plaintiff's lungs, sinuses, throat and chest became infected and diseased, and that her injuries are permanent. The damages claimed were for past, present and future pain and suffering, and the expenditure of money for medical care and other treatment, and future payments for such purposes.

Defendant admitted the ownership, management and operation of the building and mattress factory in question, denied all the other allegations, and filed a special plea of the statute of limitations. No replication was filed to this special plea of the statute of limitations. Plaintiff-appellee suggests, in answer to the statement in defendant's brief, that “No replication was filed to this special plea of the statute of limitations * * * and consequently the facts set forth are admitted”, that on June 2, 1939, plaintiff filed a motion to strike the answer and pleas to the second amended complaint, which motion to strike directly denied the allegations set up in the answer and pleas theretofore filed by the defendant; that on June 20, 1939, a hearing was had before the court who at that time heard the arguments of counsel with respect to the statute of limitations and entered the following order:

“It Is Ordered that defendant's Answer and Pleas to Second Amended Complaint be and the same is stricken.

“The defendant, electing to stand upon its said Answer and Pleas to Second Amended Complaint, is hereby adjudged in default, for failure to file a new answer or plead to said Second Amended Complaint, and it is so ordered.

“It Is further ordered that this case be set for hearing upon said Second Amended Complaint on September 21, 1939, to determine plaintiff's damages.”;

That subsequently, on September 21, 1939, the previous order striking the defendant's answer, but not the pleas, was vacated and set aside. The defendant made a motion for a jury trial and the case was set for trial.

When the instant case was first called for trial, the court, after reading the authorities, stated that he did not believe that the question of negligence had anything to do with the case and at that time the plaintiff was permitted to amend her complaint by striking out the words “carelessly and negligently” in paragraph two of her complaint. Later an order to that effect was entered by the court as follows: “Leave is given the plaintiff to file his second amended complaint and to amend the same by striking out the words negligently and carelessly in paragraph 2 thereof.” This order was entered during the course of the trial on November 30, 1940. It appears from the record that no action, either in the way of an answer, motion to strike, or objection to the striking out of the words “carelessly and negligently” was taken by the defendant.

From the statement of facts, established by the evidence heard by the court and jury, it appears that defendant operated a large factory at 2447 West Roosevelt Road, engaging in the manufacture and processing of cotton mattresses, pillows, and other products of like nature. Several years after the defendant had set up its factory, the plaintiff, Felice Menolascino, and her husband purchased (in 1926) a home across the street. The home was one of a number of homes in a block of buildings which ran from Campbell avenue on the west about one-half block to the east. These buildings had been there for many years. For several years plaintiff lived in the neighborhood and the factory operated its business without any complaint. Plaintiff at that time was in perfect health, had never had anything wrong with her nose, her sinuses, her throat, or her chest. She weighed about 116 pounds and, according to the testimony of a doctor who had taken care of her little girl, was in radiant health. Plaintiff's bedroom was located in the front of her house directly across the street from the mattress factory. In about 1932 the defendant's factory began to discharge great quantities of cotton linter, described by witnesses as a grayish white dust. Numerous neighbors testified to the conditions pertaining in the neighborhood between 1933 to 1935 as a result of this great discharge from defendant's premises.

One witness, Dominick Cherin, who lived next door, testified to the frequent and almost daily discharge of this snow-like cotton, saying that it came from a blower, and that when the wind was from the south the stuff “was flying around through the windows into the flats,” and that it was so bad he could not breathe; that the furniture was covered with it, as well as the sidewalks; that frequently defendant's employees gathered up and swept off the sidewalks; that upon at least ten different occasions he had complained to the defendant of the conditions; that they took sacks of this “stuff” off the roof; that in 1935 or 1936 he started a suit against defendant for damage to his property; that when the cotton was coming from the factory you could not breathe the air; and that, in 1936, after suit had been started, the conditions were alleviated.

There was the further evidence of Fred Lang, who testified for plaintiff, that he had formerly been an employee of defendant company, working in the basement where the cotton was chopped up. It appears that there was a large hopper into which the baled cotton was thrown, and that it was his duty to open the bales and throw it into the hopper. He said there was lots of dust from this operation. He also owned a home at 2423 Roosevelt Road, and testified that the dust from the hopper where he had worked was the same dust which was discharged about the neighborhood and onto his as well as his neighbor's premises; that he was affected personally by this dust being blown up his nose, mouth and ears, and that at one time between 1932 and 1935 the condition in his home was awful; that the sidewalk was filled every day, every hour, an inch thick for two or three weeks; and that he made complaints to his straw bosses and told them to fix it and that they laughed at him. Numerous other witnesses corroborated these stories. Witness Danny Cherin, 2450 Roosevelt Road, testified to substantially the same things. He also testified that he noticed in the morning he would constantly have to sneeze and his throat would dry up; that “it made you constantly sneeze and that your eyes would get red”; and that at times it was so bad it made breathing difficult. There were other witnesses who testified and a witness named Emil Van Hoorde, who lived just east of the factory in question. His back porch overlooked the roof of the factory. He was a chemist, and when questioned as to how he knew that the dust was coming from the factory said: “Of course, I could see--right there from the factory--it was right straight from there--there was no question about it, the whole roof on the factory was full and all over was this stuff and they put up there some of the new parts--it was all full--there was no question about that.” He further testified...

To continue reading

Request your trial
16 cases
  • Morgan v. High Penn Oil Co.
    • United States
    • North Carolina Supreme Court
    • September 23, 1953
    ...A.L.R. 1399; Laflin & Rand Powder Co. v. Tearney, 131 I11. 322, 23 N.E. 389, 7 L.R.A. 262, 19 Am. S.R. 34; Menolascino v. Superior Felt & Bedding Co., 313 I11.App. 557, 40 N.E.2d 813; City of Lebanon v. Twiford, 13 Ind. App. 384, 41 N.E. 844; Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.......
  • First Springfield Bank and Trust v. Galman
    • United States
    • United States Appellate Court of Illinois
    • November 4, 1998
    ...cases that state a new rule that contributory negligence is not a defense to a nuisance claim. See Menolascino v. Superior Felt & Bedding Co., 313 Ill.App. 557, 571, 40 N.E.2d 813, 819 (1942); Woods v. Khan, 95 Ill.App.3d 1087, 1090, 51 Ill.Dec. 470, 420 N.E.2d 1028, 1031 (1981); Turner v. ......
  • Gardner v. Int'l Shoe Co.
    • United States
    • United States Appellate Court of Illinois
    • June 1, 1943
    ...264;Feder v. Perry Coal Co. 279 Ill.App. 314;Eckart v. City of Belleville, 294 Ill.App. 144,13 N.E.2d 641;Menolascino v. Superior Felt & Bedding Co., 313 Ill.App. 557, 40 N.E.2d 813. Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a n......
  • Schatz v. Abbott Laboratories, Inc.
    • United States
    • United States Appellate Court of Illinois
    • March 5, 1971
    ...In fact, an annoyance may result where there is the highest degree of care in the conduct of the business. Menolascino v. Superior Felt & Bedding Co., 313 Ill.App. 557, 40 N.E.2d 813. Offensive odors may constitute a nuisance for which there is a cause of action. Oehler v. Levy, 234 Ill. 59......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT