Newman v. City of Marceline

• Decision Date: 21 May 1928
• Citation: 6 S.W.2d 659,222 Mo.App. 980
• Parties: LUVINA NEWMAN, RESPONDENT, v. CITY OF MARCELINE, APPELLANT. [*]
• Court: Kansas Court of Appeals

6 S.W.2d 659

222 Mo.App. 980

LUVINA NEWMAN, RESPONDENT, v. CITY OF MARCELINE, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

May 21, 1928

Appeal from the Circuit Court of Carroll County.--Hon. Ralph Hughes Judge.

AFFIRMED.

Judgment affirmed.

Lon R Owen and S. J. and G. C. Jones for respondent.

G Derke Green (C. B. Burns and C. M. Kendrick of counsel) for appellant.

FRANK, C. Williams, C., concurs. Trimble, P. J., absent.

OPINION

FRANK, C.

Action to recover damages for the maintenance of a temporary nuisance. The cause originated in the circuit court of Linn county, but went on change of venue to the circuit court of Carroll county where a trial was had which resulted in a verdict and judgment in favor of plaintiff, and defendant appealed. Plaintiff was the owner of and resided in a residence property located in defendant city. The petition alleges in substance that in 1924, the defendant constructed and at all times thereafter maintained near her said home and residence, a certain septic tank or reservoir as a part of the sewer system of defendant city; that the sewage from defendant city was dumped into said septic tank, and at all times, both day and night, there was in said tank certain poison, noxious, germ laden, slimy, discolored, ill-smelling substance or liquid; that the substance in said septic tank emitted dangerous, sickening, disagreeable and unbearable scents and odors which permeated the air and was carried onto plaintiff's premises and into her said dwelling house, and caused her to lose the use, profits, earnings, enjoyment and comfort of her said premises and home and rendered same unsalable, unrentable and caused her to lose the reasonable rental value thereof.

The case was submitted to the jury on the testimony adduced by plaintiff. Defendant offered no evidence. No contention is made that the evidence did not tend to prove the facts as alleged in the petition. A reproduction of the evidence is, therefore, unnecessary.

Defendant's contention is that if the septic tank maintained by defendant was a nuisance, it was a public one, and for that reason, it was incumbent on plaintiff, in order to make out a case, to both allege and prove that she sustained special injuries or damages different in kind or character from those suffered by the public generally, all of which she failed to do, and for that reason, the demurrer to the evidence should have been sustained.

The law governing cases brought for the recovery of damages on account of the maintenance of a public nuisance is correctly stated by defendant and has been so long and well established that a discussion of it, or a review of the cases cited by appellant would be neither instructive or interesting. We think, however, that defendant is wrong in its contention that the petition and the evidence adduced in support of it does not bring the case within this rule.

While the petition does not specifically allege that the injuries suffered by plaintiff were different in kind or character, from those suffered by the public generally, it does allege that the septic tank filled with sewage from defendant city, was maintained, near her residence, and that foul, dangerous and offensive odors came from said sewage onto plaintiff's premises and into her dwelling house and deprived her of the comfort and enjoyment of her home, rendered same unsalable and caused her to lose the reasonable rental value thereof.

It may be true that the stench from the septic tank affected alike all who came in contact with it, but the fact that plaintiff owned and lived in property located near the tank, and was disturbed in the comfort and enjoyment of her home, by reason of the foul and offensive odors coming from the sewage in said tank, entitled her to maintain an action for said injuries. This tank was peculiarly injurious to plaintiff on account of its close proximity to her home. This being true, a petition alleging such facts, states a cause of action although it may not specifically allege that the injuries sustained by plaintiff were different in kind from those suffered by the public generally. This question was before the Supreme Court in Edmondson v. City of Moberly, 98 Mo. 523, 526, 11 S.W. 990, whereat the court said:

"The evidence offered by plaintiffs tended to show that a nuisance, specially injurious to them, had been caused by the acts of defendant and justified the submission of their cause to the jury. The wrong of which plaintiffs complain is not merely public in its effect. It is peculiarly injurious to them by reason of its proximity to their abode, in consequence of which they sustain discomfort and annoyance in the possession of their property and a diminution in its value not shared by the community in general. Hence it may properly be the basis of a private action by them."

Again in Givens v. Van Studdiford, 86 Mo. 149, 158, the Supreme Court, speaking to a like question, said:

"It is true, the petition does not in so many words allege that the injury suffered by the plaintiff was other and different in kind from that suffered by the community in general, but it does, as we have seen, in detail show that he was deprived of the full use and enjoyment of the rents of his property. A slaughter house may be a common nuisance and alike uncomfortably affect all who come within the locality, but to those who live or own property in the immediate vicinity and are...