Thompson v. Anderson
| Decision Date | 29 November 1944 |
| Docket Number | 6722 |
| Citation | 107 Utah 331,153 P.2d 665 |
| Court | Utah Supreme Court |
| Parties | THOMPSON et ux. v. ANDERSON et al |
Appeal from District Court, Third District, Salt Lake County; George A. Faust, Judge.
Suit by M. I. Thompson and wife against E. L. Anderson and another to enjoin defendants from certain noisy conduct in and about defendant's business premises as allegedly contributing a nuisance and for damages caused thereby. From an adverse judgment named defendant appeals.
Affirmed.
Judgment affirmed.
Harley W. Gustin and Keith Browne, both of Salt Lake City, for appellant.
A. H Hougaard, of Salt Lake City, for respondents.
Defendant appeals from a decree of the District Court of Salt Lake County, enjoining him from certain conduct in and about business premises adjoining his home, and awarding plaintiffs $ 200 damages.
The complaint alleges that the parties live in adjoining houses and the business property operated by defendant is directly in the rear of plaintiffs' residence; that defendant engages in certain businesses on said property; that the conduct of defendant's businesses on said property is a nuisance, and specifies the following particulars: Noise of trucks and cars in the driveway adjoining plaintiffs' residence; loud and unusual noise from power-driven saws; trucks and cars blocking the driveway, and motors on said vehicles left running while in the driveway; loud talking and slamming of doors during the nighttime; hammering during the day time and the nighttime; sound equipment which caused "loud, unusual and shrieking noises;" "loud and unusual" noise of large vacuum cleaners. There is also alleged notice to defendant that this condition constituted a nuisance, his refusal to abate it, and damage to plaintiffs. Defendant's demurrer to the complaint was overruled, issues joined, and after hearing the evidence the court entered a decree dismissing the action as to Ted Anderson; enjoining the conduct here complained of, and for $ 200 as damages to plaintiffs. Defendant appeals.
The first assignment of error is the overruling of defendant's general demurrer to the complaint. Two arguments are advanced in support of this position. Firstly, defendant points out that there is no complaint that defendant's business is not a lawful business, and that the sounds which annoy plaintiffs are not unusual and not the ordinary sounds emanating from such a business as defendant is conducting. But even sounds normally inherent in the nature of a business may under some circumstances constitute a nuisance. In Brough v. Ute Stampede Ass'n, 105 Utah 446, 142 P.2d 670, 674, it was not alleged or shown that the noises of which complaint was made were any but the usual noises attendant upon a carnival. The projected business was lawful, had in fact been specially licensed by the city council in past years, and yet we affirmed the judgment enjoining the holding of the carnival in front of plaintiff's property. Defendant's next argument is that the use of phrases "great and unusual noises" and "loud and unusual noises" is merely a conclusion of the pleader, and since there is no showing that the noises are louder than to be expected from operations such as are being carried on by defendant, no cause of action is stated. We fail to see how else plaintiff could have described the sounds without resorting to a classification by decibels of sound. It is similar to the allegation of "high and dangerous rate of speed" which we have approved in many cases. Loud means marked by intensity or relative intensity; giving an intense auditory impression. Unusual is defined as uncommon; not usual, rare. Great means considerable in magnitude, power, intensity; considerable in degree. Webster's Intern'l Dict. 2nd Ed. Does not this description of the noises convey their character to the mind equally as well as had the complaint alleged that it was a sound of say 50 decibels? Furthermore, as to the noises of the power saw and the sound equipment, are not such noises within the common experience of all of us? Does not the noise of a power saw, or the noise of amplifiers, evoke in the minds of everyone an accurate conception of the nature and intensity of the sound described? In short, the court could take notice of the nature and intensity of such sounds, "for justice does not require that courts profess to be more ignorant than the rest of mankind." Brough v. Ute Stampede Ass'n, supra. The first assignment is without merit.
The next assignment of error is that the court should have granted defendant's motion to transfer the cause to the jury calendar. In civil actions a jury is waived unless demanded, Utah Constitution, Article 1, Sec. 10; Sec. 104-26-1, U. C. A. 1943, and even then, unless the demand is made in the manner provided by statute, it is unavailing. Sec. 104-23-6, U. C. A. 1943, provides:
"Either party to an action * * * who desires a jury trial of the same * * * must demand it, either by written notice to the clerk prior to the time of setting such action for trial, or within such reasonable time thereafter as the court may order * * *."
No demand was made in accordance with the above statutory provisions, but pursuant to the authority therein contained for the court to provide a further time after setting for trial within which to make a demand, the Salt Lake County District Court has made rule No. 8, set out in respondents' brief, which provides that written application for a jury trial, and notice thereof may be made within five days after setting of the action on the nonjury calendar, and providing further that such application must be noticed for hearing at least five days prior to the date on which the case is set for trial. After the cause was set for trial on the nonjury calendar, defendant filed a motion under the provisions of rule No. 8 to have the cause transferred to the jury calendar. The application was not made within five days after setting of the case, and was not noticed for hearing five days before date of trial as provided by the rule. After a hearing the trial court denied the motion. Since it is a matter of discretion with the court to allow or refuse a demand for a jury when not made within the statutory time, Wood v. Rio Grande W. Ry. Co., 28 Utah 351, 79 P. 182; Ogden Valley Trout & Resort Co. v. Lewis, 41 Utah 183, 125 P. 687; Board of Education of Salt Lake City v. West, 55 Utah 357, 186 P. 114, it follows that it would also be discretionary for the court to refuse demand for a jury which did not come within an extended time provided by court rule. Nor is it an abuse of discretion to fail to grant demand for a jury trial when made late if no excuse is shown for the failure to make a demand within the time allowed by statute. Board of Education of Salt Lake City v. West, supra. The justification given in the present case is that defendant was giving "consideration * * * to overtures of the said plaintiff" which might have tended toward a settlement of the case. There was no abuse of discretion on the part of the trial court in refusing a jury trial upon such an excuse. Defendant now argues that Rule 8 was not introduced in evidence and therefore is not before this court. But such position does not help defendant because without Rule 8, there is no basis for his motion to transfer the case to the jury calendar and nothing upon which to predicate error.
We do not express any opinion as to whether it would be error to refuse a jury trial in such a case as this, had demand been made before the cause was set for trial as required by statute. That question is not here and we express no opinion thereon.
The next assignment is that the damages awarded are not justified by the evidence. This also presents the question whether $ 200 is "normal damages." After saying in its memorandum decision that "actual damages were left in the realm of speculation, and the court does not feel constrained to assess general damages," the court awarded plaintiffs $ 200 as nominal damages. That term has been defined as damages in name only, allowed simply in...
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