Nuessle v. Western Asphalt Paving Corp.

Decision Date17 October 1922
Docket Number34622
Citation190 N.W. 5,194 Iowa 616
CourtIowa Supreme Court

Appeal from Monona District Court.--W. G. SEARS, Judge.

ACTION to recover damages to real and personal property for inconvenience and discomfort suffered by plaintiff, and for the impairment of her health, on account of the erection and operation of an asphalt plant near her residence. Verdict and judgment for plaintiff. Defendant appeals.


Henderson Fribourg & Hatfield and Robert B. Pike, for appellant.

Oliver & Allen and C. E. Underhill, for appellee.



The facts of this case are very similar to the facts in Andrews v. Western Asph. Pav. Corpn., 193 Iowa 1047, 188 N.W. 900, and the damages claimed are the result of the same cause. The plaintiff in that case resided on Lot 2, and the plaintiff in the present case on Lot 3, in Block 46 in the city of Onawa. The statement of the facts in the former case will suffice for the statement in this case except that the evidence herein shows that plaintiff was the owner of the residence property in which she lived, whereas Mrs. Andrews occupied the property on Lot 2 as a tenant, and sought damages to the real property as the assignee of the owner. The elements of damage in the two cases are not in all respects the same, and so far as this is material, if at all, the distinction will be later pointed out. The issue of estoppel is the same in both cases, and the decision in Andrews v. Asph. Pav. Corpn., supra, is controlling upon this point.

Plaintiff alleged, in an amendment to Count 5 of her petition, that her health was seriously and permanently affected, and that the impairment of her health continued to the present time, and is permanent. The court, in stating the issues to the jury, repeated almost verbatim the language of the petition upon this point. In Paragraph 17 of Instruction 20, the court said:

"You are instructed that the plaintiff must prove by a preponderance of the evidence that she was injured in her health and became nervous and ill by the acts of defendant substantially as charged in Paragraphs 6 and 7 of these instructions; and she must farther prove by a preponderance of the evidence that said acts referred to in Paragraphs 6 and 7 of this charge were proximate cause of the injury to her health and to her nerves, and she must farther show by a preponderance of evidence the amount of such damage to her health, as set forth in Paragraphs 6 and 7 of these instructions, not to exceed the sum of $ 3,500, the amount claimed in Paragraph 6."

Paragraph 6, referred to in this subdivision of the instruction, is the paragraph of the court's charge in which the issue of the alleged permanent impairment and injury to the health of plaintiff was stated. No other reference is to be found in the instructions to the question of permanent damages. A motion was made by appellant, at the close of all the testimony, to direct a verdict for the defendant, upon Count 5 of the amendment to plaintiff's petition, which included allegations upon which damages of a temporary nature might be allowed by the jury, upon the grounds generally that the allegations thereof were not supported by the testimony; and also to direct a verdict upon each count of the petition and amendment thereto, upon the general ground that the evidence was not sufficient to sustain a verdict in plaintiff's favor. These motions were overruled. The question of permanent injury to plaintiff's health is in no way referred to in either motion, and counsel did not ask that this issue be withdrawn from the jury. Exception, however, was later lodged against Paragraph 17 of Instruction 20, upon the ground that there was no evidence upon which the jury could assess permanent damages, and that it was error for the court to submit this issue.

It is contended by appellee that, as no motion was made to withdraw the issue of permanent injuries from the jury upon the ground that there was no evidence to sustain the same, and that, as the submission thereof is not made a ground of the motion for a new trial, appellant cannot be heard to complain. No motion was made to withdraw the issue from the jury, but, as stated exception was preserved to the instruction, upon the ground that the evidence did not justify its submission;...

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