Seaboard Oil Co. v. Chalk

• Decision Date: 09 February 1935
• Citation: 159 So. 531,118 Fla. 383
• Parties: SEABOARD OIL CO. v. CHALK et al.
• Court: Florida Supreme Court

159 So. 531

118 Fla. 383

SEABOARD OIL CO. v. CHALK et al.

Florida Supreme Court

February 9, 1935

Rehearing Denied March 12, 1935.

En Banc.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Arthur B. Chalk and others against the Seaboard Oil Company. To review an order vacating a judgment of nonsuit defendant brings error.

Affirmed.

See also, 150 So. 605, 112 Fla. 387.

COUNSEL Julian Hartridge, of Jacksonville, for plaintiff in error.

White &amp Colson, of Miami, for defendants in error.

OPINION

WHITFIELD Chief Justice.

In an action to recover damages from the Seaboard Oil Company for the alleged maintenance of an alleged nuisance to the injury of the plaintiffs, the second count of the declaration was abandoned at the trial 'together with the concluding lines of the declaration which read as follows:

'Hence this suit and Plaintiffs claim punitive damages, in the sum of Forty Two Thousand ($42,000.00) Dollars."

The first count contains allegations that in December, 1924, 'the plaintiffs were and * * * still are the owners as tenants in common and lawfully possessed of' described real estate in the city of Miami, Dade county, Fla.; that the defendant corporation on March 31, 1925, was and from thence hitherto has been the owner and possessed and still is the owner and possessed of 'described real estate which said real estate of the defendant corporration adjoined the real estate of the Plaintiffs * * * on the East side thereof, on the South side thereof and on the West side thereof and completely surrounds the real estate of the Plaintiffs except on the North side thereof, which is bounded by a public street. That there was in the Spring of the year 1925, and still is, situate upon the said described land of the Plaintiffs a dwelling-house and an apartment house, the property of the Plaintiffs, which, together with the said described land of the Plaintiffs, was then and before the committing, maintaining and continuing by the Defendant Corporation of the nuisance hereinafter complained of, reasonably worth the sum of Twenty Five Thousand ($25,000.00) Dollars as the fair market value thereof, and Plaintiffs claim of the Defendant Corporation the sum of Forty Two Thousand ($42,000.00) as damages for the committing, maintenance and continuing of a nuisance to the injury and damage of the Plaintiffs and each of them, for that to-wit, on the First day of August, A. D., 1925, and from thence hitherto, the Defendant Corporation owned and operated and still continues to own and operate on the said * * * real estate of said Defendant Corporation, surrounding the land of the Plaintiffs aforesaid, a gasoline, oil and petroleum products unloading, storage and distributing station, plant of business for the unloading, storage and distributing of gasoline, oil and petroleum products. The Plaintiffs, aver that the Defendant Corporation, or the servants, agents or employees of defendant, acting in the line and scope of their employment as such did so operate and ever since the First day of August, A. D. 1925, have continued to so operate said gasoline, oil and petroleum products unloading, storage and distributing station, plant of business, that noxious, noisome, nauseous, unhealthful, damaging, disagreeable and offensive gases, vapors and odors issuing from Defendant's premises were proximately allowed or caused to reach the said land, dwelling-house and apartment-house of the plaintiffs, thereby polluting the air in, above and about the land, dwelling-house and apartment-house of the Plaintiffs, and Plaintiffs, aver that as a proximate consequence of the wrongs aforesaid the said land, dwelling-house and apartment-house and the entire said premises of the Plaintiffs, were rendered unhealthful, uncomfortable, unsafe, unsanitary, unfit for human habitation and absolutely valueless to the Plaintiffs or either or any of them, and as a proximate consequence of the noxious, noisome, nauseous, unhealthful, damaging, disagreeable and offensive gases, vapors and odors emanating and issuing from said premises of the Defendant Corporation, that the Plaintiffs and each of them were rendered sick and sore, suffered great mental and physical pain and the health of each of the Plaintiffs was injured and impaired; that the Plaintiffs and each of them have been put to great expense in and about the treatment of himself or herself for medicine and medical attention. Hence this suit and the Plaintiffs claim punitive damages.'

A motion for a bill of particulars was overruled.

A demurrer to the declaration on grounds that it did not state a cause of action, and that the 'first count does not state a specific sum as damages at the conclusion thereof,' was overruled.

A plea of the general issue, not guilty, and...