National Glue Company v. Thrash

• Decision Date: 11 October 1921
• Docket Number: 10,648
• Parties: NATIONAL GLUE COMPANY v. THRASH ET UX
• Court: Indiana Appellate Court

132 N.E. 311

76 Ind.App. 381

NATIONAL GLUE COMPANY v. THRASH ET UX

No. 10,648

Court of Appeals of Indiana

October 11, 1921

From Johnson Circuit Court; Fremont Miller, Judge.

Action by Walter M. Thrash and wife against the National Glue Company. From a judgment for plaintiffs, the defendant appeals.

Reversed.

Lew Wallace, for appellant.

W. S Henry and Frank Williams, for appellees.

OPINION

ENLOE C. J.

This was an action by appellees against appellant to recover damages, and for injunction abating an alleged nuisance. The appellant owns and operates a plant for the manufacture of glue, on West Fourteenth street in the city of Indianapolis, and the property in which appellees live is situate on Thirteenth street in said city, and about one city block distant from said glue factory.

The averments of the complaint material to a consideration of the questions presented on this appeal, were as follows:

"That these plaintiffs are joint owners of a certain equity in the following described real estate, same being Lot No. 37, in Braden's subdivision of Bret Bradden & Company's addition to the city of Indianapolis, Marion County, State of Indiana, of the value of sixteen hundred ($ 1600) dollars.

"That from the operation of the said defendant company's business and factory above mentioned, * * *, the air immediately surrounding the said defendant company's place of business, extending to and affecting these plaintiffs' property, becomes impregnated with obnoxious stinks and poisonous airs, which obnoxious stinks and poisonous airs deprive these plaintiffs from the free use, occupancy and enjoyment of their said property.

"That by reason of the obnoxious odors emitting from the defendant's factory, and by reason of these plaintiffs' property being located in said community, where said odors effect the same, plaintiffs say that said operation of said business in said location is a nuisance, and that the same should abate, and that said defendant company should be permanently enjoined from the operation of said business upon the premises above mentioned, and that said plaintiffs have sustained damages by reason of the injury of their health and the health of their family, and the damages sustained to their property value, in the sum of sixteen hundred ($ 1600) dollars."

The appellant filed its motion to require this complaint to be made more specific, in certain designated particulars, which motion was by the court overruled, and appellant then demurred to the complaint for want of facts, and filed its memorandum of deficiencies, as required by the statute. This demurrer was also overruled. Exceptions were duly taken to each of the aforesaid rulings. Appellant then filed its answer in general denial and the same was submitted to the court for trial, resulting in a finding in favor of appellees, and judgment in their favor in the sum of $ 400 and costs. There was a motion for a new trial which being overruled, this appeal is prosecuted. The errors assigned and presented challenge the correctness of the action of the court in: (1) Overruling the motion to make complaint more specific; (2) overruling the demurrer to the complaint; and (3) overruling motion for a new trial.

The two specifications in the motion to make more specific, which we consider of any importance, relate to the allegations of ownership of said property, and of injury to the health of appellees.

The averment of the complaint as to ownership of said property was: "These plaintiffs are the owners of a certain equity in the following described real estate," and, based upon this, they asked for "damages sustained to their property values." To say that a party has an "equity" in and to certain lands, is stating the matter very indefinitely. Also, unless the facts are stated out of which such "equity" is supposed to arise, an allegation that a party has an "equity," is simply an allegation of a legal conclusion, and therefore insufficient, as an allegation of interest in said premises. Central Bank, etc. v. Martin (1918), 70 Ind.App. 387, 121 N.E. 57. If the appellees were seeking damages, as for an injury to the freehold--the property itself--then they must have more than an "equity" in and to said premises, as their interest upon which to found their action.

The said complaint also avers: "That said plaintiffs have sustained damages by reason of the injury of their health and of their family." As to this allegation, the motion to make more specific addressed thereto asked that the plaintiffs be required to set out to what extent, and in what manner, the health of appellees, and of any member of their family, had been or will be injured by reason of the matters alleged in said pleading.

The allegation...