Oklahoma City v. Eylar
| Decision Date | 13 October 1936 |
| Docket Number | 25574. |
| Citation | 61 P.2d 649,177 Okla. 616,1936 OK 614 |
| Parties | OKLAHOMA CITY v. EYLAR. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. An amended petition incorporating all the allegations of the original petition and which introduces no new cause of action relates back to the time the original petition was filed.
2. The manner of maintenance by a city of a sewer may constitute a nuisance, and, where it does so, immunity from damages does not ensue under the theory that the city is engaged in a governmental function.
3. The personal inconvenience, annoyance, and discomfort to the occupant of real estate caused by the maintenance by another of a temporary nuisance in the immediate vicinity of said real estate is a separate and distinct element of damage from that of the depreciation of the usable or rental value of the real estate occupied; the measure of such damages being reasonable compensation for the injury.
Appeal from District Court, Oklahoma County; Arthur G. Sutton Judge.
Action by J. W. Eylar against the City of Oklahoma City. Judgment for plaintiff, and defendant appeals.
Affirmed.
Harlan Deupree, Municipal Counselor, and P. E. Gumm, Asst. Municipal Counselor, both of Oklahoma City, for plaintiff in error.
Sanford Babcock, of Oklahoma City, for defendant in error.
This action was instituted in the district court of Oklahoma county by J. W. Eylar, hereinafter referred to as plaintiff against the city of Oklahoma City, hereinafter referred to as defendant, to recover damages arising from the negligent operation of its sewer system. The cause was tried to a jury and a verdict was rendered in favor of plaintiff for the sum of $1,000. From a judgment on the verdict, defendant has appealed.
Plaintiff was the owner of a tract of land adjacent to the North Canadian river and occupied the same as his residence. The city of Oklahoma City emptied its sewage into said river. It is established by the verdict of the jury that either by the negligent operation of the sewer system, or by improperly treating the sewage, there was created foul and noxious odors which caused discomfort, annoyance, and inconvenience to plaintiff and his family, and that the right of plaintiff and his family to enjoy said premises as their home was thereby greatly diminished.
It is contended by defendant that the trial court should have limited plaintiff to proof of the nuisance to two years prior to the date of filing of the amended petition on October 28, 1933. The trial court limited the plaintiff in his proof of the wrong to two years prior to the institution of the present action on March 21, 1933.
No error exists in this regard. 49 C.J. 560; Symms Grocer Co. et al. v. Burnham, etc., Co. et al., 6 Okl. 618, 52 P. 918.
The second and third contentions made, being similar, are likewise decided.
The fourth proposition is that the city was not liable because engaged in performance of a governmental function.
There is no merit in this. Enid v. Brooks, 132 Okl. 60, 269 P. 241; Collinsville v. Brickey, 115 Okl. 264, 242 P. 249; Tecumseh v. Deister, 112 Okl. 3, 239 P. 582; City of Cushing v. Luke, 82 Okl. 189, 199 P. 578; Ardmore v. Colbert, 52 Okl. 235, 152 P. 603; City of Cushing v. High, 73 Okl. 151, 175 P. 229; Sayre v. Rice, 132 Okl. 95, 269 P. 361; City of Edmond v. Billen et al., 170 Okl. 37, 38 P.2d 564; Oklahoma City v. West, 155 Okl. 63, 7 P.2d 888; Markwardt v. Guthrie, 18 Okl. 32, 90 P. 26, 9 L.R.A. (N.S.) 1150, 11 Ann.Cas. 581; 43 C.J. 1149.
Complaint is made of the following instruction: "If you believe from the evidence, facts and circumstances that the said defendant discharged refuse, residue or sewage from its disposal plant into the said North Canadian river, because of its negligent failure properly to construct and maintain a disposal plant sufficient to take care of the sewage of the City, so that it would not pollute the water in the said river; that it negligently failed to repair the broken sewer line where it crossed the North Canadian river and negligently permitted quantities of raw sewage to pass directly into said river; and that because of the discharge of the said matter into said water, the said water became polluted and impregnated with substances creating foul and noxious odors; that the said foul and noxious odors permeated and spread over the area around the plaintiff's house and premises and interfered with the comfort of himself and his family and subjected them to great annoyance and discomfort then your verdict should be for the plaintiff for such sum as will reasonably compensate him for the discomforts and annoyance he has suffered, if any, by reason of such offensive odors and discomforts and the interference of his quiet and peaceful occupancy of his home, for the period of two years prior to the 21st day of March, 1933, not in any sum, however, exceeding $5,000.00."
The issue raised by the above instruction has resulted in some conflict in the recent decisions of this court regarding the measure of damages for annoyance and discomfort occasioned by the maintenance of a nuisance. In the case of Oklahoma City v. Hopcus, 174 Okl. 186, 50 P.2d 216, it was held that the owner of a farm which he occupied as a home was entitled to compensation for annoyance and discomfort occasioned by the maintenance by another of a nuisance adjacent thereto, but the measure of damages to be awarded is the diminution in the rental or usable value of the premises. The same rule was adopted in the case of Oklahoma City v. McAllister, 174 Okl. 208, 50 P.2d 361, and in the case of Oklahoma City v. Tyetenicz, 175 Okl. 228, 52 P.2d 849. In another case styled Oklahoma City v. Tytenicz, 171 Okl. 519, 43 P.2d 747, 748, it was held that personal inconvenience, annoyance, and discomfort to the occupant of real estate is a separate and distinct element of damage from that of the depreciation of the usable or rental value of the real estate occupied. We quote from the body of the opinion as follows: The defendant urges that this question of personal discomfort, annoyance, and inconvenience is an element in the loss of usable or rental value, and cited a number of authorities to sustain this position, the leading cases being Swift v. Broyles, 115 Ga. 885, 42 S.E. 277, 58 L.R.A. 390, and Southern Ry. Co. v. Routh, 161 Ky. 196, 170 S.W. 520; but this court in the case of City of Weatherford v. Rainey et al., 151 Okl. 183, 3 P.2d 153, has adopted the contrary rule, which is that the personal inconvenience, annoyance, and discomfort is a separate and distinct element of damage from that of the usable or rental value, and this position is sustained by numerous authorities in the United States, among which are Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739; United States Smelting Company v. Sisam 191 F. 293, 37 L.R.A. (N.S.) 976; Adams Hotel Co. v. Cobb, 3 Ind.T. 50, 53 S.W. 478; Pierce v. Wagner, 29 Minn. 355, 13 N.W. 170; Millett v. Minnesota Crushed Stone Company, 145 Minn. 475, 177 N.W. 641."
It is noted that the conflict in these cases is irreconcilable.
There can be no doubt that damages for personal inconvenience, discomfort, and annoyance caused by the maintenance of a nuisance are recoverable in a proper action. There is authority supporting the view that depreciation in rental value of a dwelling house may be looked to as furnishing a proper evidentiary guide for determining the extent of the annoyance and discomfort actually suffered. Swift v. Broyles, 115 Ga. 85, 42 S.E. 277, 58 L.R.A. 390; Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S.W. 370; Standard Oil Co. of Kentucky v. Bentley, 260 Ky. 185, 84 S.W.2d 20. The weight of authority, however, supports the view that damages for inconvenience, discomfort, and annoyance caused by the maintenance of a nuisance are separate, distinct, and independent elements of damage. Damages for depreciation in value of land and for physical discomfort resulting from a nuisance may be recovered in the same action. Cross v. Texas Military College (Tex.Civ.App.) 65 S.W.2d 794.
In the case of Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 731, 27 L.Ed. 739, it was said: ...
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