Miller v. Town of Ankeny

• Decision Date: 08 May 1962
• Docket Number: No. 50628,50628
• Citation: 253 Iowa 1055,114 N.W.2d 910
• Parties: M. B. MILLER, Appellee, v. TOWN OF ANKENY, Appellant.
• Court: Iowa Supreme Court

Page 910

114 N.W.2d 910

253 Iowa 1055

M. B. MILLER, Appellee, v. TOWN OF ANKENY, Appellant.

No. 50628.

Supreme Court of Iowa.

May 8, 1962.

Hansen, Wheatcraft & Galvin, Des Moines, for appellant.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellee.

GARFIELD, Chief Justice.

This is a law action in three counts by a landowner-occupant against the town of Ankeny for damages from alleged nuisance in the operation of its sewage disposal plant. From judgment on jury verdict for plaintiff of $4700 on Count II only, defendant has appealed. Error is assigned in admission of evidence, instructions to the jury and refusing to order a new trial or remittitur because of alleged excessive verdict.

Plaintiff's first count claimed his land was diminished in value by a nuisance alleged to be permanent. Count II, on which plaintiff recovered, claimed inconvenience and discomfort to him and his family from a temporary, continuing nuisance. The third count claimed diversion of surface water. All three counts were submitted to the jury. We may disregard Count III. Count I is material only in considering the first error assigned, relating to admission of evidence.

Plaintiff owns a farm of 127 acres on which he, his wife, son and the son's wife live in two separate dwellings. Delaware Road runs north and south along the west side of the farm, a mile east of Highway 69 through Ankeny. Enterprise Road runs east and west a third of a mile north of plaintiff's farm. In 1960 defendant built a new sewage disposal plant on 5 1/2 acres just north of plaintiff's land. The plant is a little over 1200 feet north of plaintiff's dwelling and about 350 feet further north of the son's dwelling. The inconvenience and discomfort to plaintiff and his family on which his Count II is based is said to come from noxious odors from the plant.

I. Defendant's first assigned error is the admission, over its objection of incompetent, irrelevant, immaterial and not relating to any proper measure of damages, of testimony of plaintiff's witness Finch, president of a Des Moines bank, that the mere location of a sewage disposal plant on the boundary of such a farm as plaintiff's would reduce its value, as a farm, for loan purposes. Over defendant's objection on like grounds and additional ones the witness was also permitted to say the 23 1/2 acres of the farm that lie within 1200 feet of defendant's plant could not be laid out for residential development purposes with a decent financing program.

At the conclusion of all the evidence plaintiff moved the court to strike and withdraw from jury consideration the first mentioned answer of Finch and to admonish the jury to disregard it. Of course the court sustained the motion, struck the evidence and directed the jury to disregard it. The instructions to the jury reminded it of this admonition and again directed that the evidence be ignored. The witness's second answer, above referred to, remained in the record.

Defendant contends it was error to receive each of Finch's answers and the first was so prejudicial to defendant the error was not cured by its withdrawal and the admonition to the jury to disregard it. In support of the claimed error in receiving the evidence it is argued the mere location of an undesirable building in the neighborhood gives rise to no cause of action unless it is a nuisance per se and, it is said, a sewage disposal plant is not per se a nuisance.

It is true we have held a sewage disposal plant is not a nuisance per se but a nuisance in fact or per accidens. Ryan v. City of Emmetsburg, 232 Iowa 600, 603, 4 N.W.2d 435, 438, and citation. This seems to be the view generally expressed in the decisions. Anno. 40 A.L.R.2d 1177, 1181, 1192. See also Wesley v. City of Waterloo, 232 Iowa 1299, 1302-1305, 8 N.W.2d 430, 431-132; McGill v. Pintsch Compressing Co., 140 Iowa 429, 435-436, 118 N.W. 786, 20 L.R.A.,N.S., 466.

As stated, plaintiff's Court I claimed damages for diminished land value occasioned by a nuisance alleged to be permanent. This pleaded not only such diminution in value but also that the residential development potential of plaintiff's 23 1/2 acres lying within 1200 feet of defendant's plant was eliminated by its construction and operation. The testimony of Finch was relevant, if at all, only to the issues raised by Count I. Count II made no claim for diminution in value of plaintiff's land but only for inconvenience, discomfort and interference with enjoyment of plaintiff and his family caused by odors from the plant.

In view of the withdrawal of Finch's first answer above referred to, the court's admonition to the jury (both at the time of such withdrawal and in the written instructions) to disregard it and the verdict for defendant on Count I, we hold admission of the Finch testimony, if error, was not sufficiently prejudicial to defendant to warrant reversal.

Ordinarily error in admission of evidence is cured by its withdrawal and instructing the jury to disregard it. Bachelder v. Woodside, 233 Iowa 967, 974, 9 N.W.2d 464, 467, and citations; State v. Caringello, 227 Iowa 305, 288 N.W. 80, and citations; Edmonds v. Heil, 333 Ill.App. 497, 77 N.E.2d 863, 873; 5 A C.J.S. Appeal and Error § 1737; 3 Am.Jur., Appeal and Error, § 1041.

Improper testimony may leave such strong impression on the jury that its withdrawal and instruction to disregard it do not cure the error in admitting it. See authorities last above; also Brown Land Co. v. Lehman, 134 Iowa 712, 715, 112 N.W. 185, 12 L.R.A.,N.S., 88, and citations; Devore v. Schaffer, 245 Iowa 1017, 1022, 65 N.W.2d 553, 555-556, 51 A.L.R.2d 1041; Throckmorton v. Holt, 180 U.S. 552, 567, 21 S.Ct. 474, 480, 45 L.Ed. 663, 671. In view of the verdict for defendant on plaintiff's Count I we cannot agree the first answer of the witness Finch, if improper, left a prejudicial effect on the jury after its withdrawal and instruction to disregard it.

Error in admitting evidence is harmless where it relates to an issue on which there is a verdict in favor of the complaining party. Coleman v. Reel, 75 Iowa 304, 306, 39 N.W. 510; Edmonds v. Heil, supra, 33 Ill.App. 497, 77 N.W.2d 863, 871-872; Jordan v. Adams Gaslight Co., 231 Mass. 186, 120 N.E. 654, 655; 5 A C.J.S. Appeal and Error § 1736a, page 1036; 3 Am.Jur., Appeal and Error, § 1042. Thus the verdict for defendant on plaintiff's Count I rendered harmless the admission of both answers of Mr. Finch of which defendant complains.

Defendant claims something for the fact the court did not instruct the jury Finch's second answer should be considered only in connection with plaintiff's Count I. A sufficient answer is that defendant did not request such a limiting admonition or instruction nor object on this ground to the instructions given the jury. Kiger v. Meehan, Iowa, 113 N.W.2d 743, 747-748, and citations.

II. There is no merit to defendant's objections to the instructions.

Plaintiff's Count II alleged the operation of defendant's plant produces and distributes foul, noxious, nauseating and vile odors so the air in and about plaintiff's home and farm becomes sickening and nauseating, causing serious inconvenience and discomfort to plaintiff and his family. In stating the issues to the jury the instructions repeated this language but made it clear it was merely plaintiff's claim and not to be taken as evidence. Instruction 5 told the jury plaintiff must prove by a preponderance of the evidence the foregoing allegations, repeating them, and others before he could recover on Count II.

Instruction 8 stated cities and towns are authorized by law to construct and operate such sewage disposal plants as defendant maintains but this does not mean they are relieved from liability if operation and maintenance of the plant constitute a nuisance. The word 'nuisance' is used twice in this instruction.

Defendant argues instructions 5, 8, and 11 (we refer to 11 in Division III here of) unduly emphasized plaintiff's theory of the case. It is true instructions should not give undue emphasis to any phase of the case favorable to either side and even correct statements of the law, if repeated to the point of such undue emphasis, may constitute reversible error. Clarke v. Hubbell, 249 Iowa 306, 316, 86 N.W.2d 905, 911, and citations; Mason v. Loyal Protective Life Ins. Co., 249 Iowa 1167, 1174, 91 N.W.2d 389, 393.

Although the instructions might have somewhat condensed the allegations of Count II, they are not fairly subject to the objection urged against them. Indeed it may be argued that in requiring proof of foul, noxious, nauseating and vile odors, so the air becomes sickening and nauseating, causing serious inconvenience and discomfort to plaintiff and his family, the instructions placed an undue burden on plaintiff.

III. Instruction 12 defined nuisance in the terms of section 657.1, Code 1958, I.C.A., as 'Whatever is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comforable enjoyment of life or property, * * *.' It went on to define a permanent nuisance...