Adams Hotel Co. v. Cobb , 3 Indian Terr. 50 ( 1899 )

Townsend, J.

Evidence Hypothetical question. The appellant has filed 13 assignments of error. The first one goes to the admissibility of certain evidence as to the condition of the sewer prior to the institution of the suit, and the second one to the admissibility of the testimony of Drs. Reeves and Thompson as experts to answer the following hypothetical question: “Assuming it to be true that foul water and filth were thrown on or near the premises of a residence in which resided a husband, wife and six children, and which emitted foul and disagreeable odors, and that condition was continued for several months, or at frequent intervals for a year or more, what, in your opinion, would be the probable result of that condition &emdash;of such a condition&emdash;upon the health of persons who reside at that point?”&emdash;because they were not the physicians who attended appellee’s family, and therefore not the best evidence. We cannot concur with appellant in its contention, and think the testimony was properly admitted.

The third assignment of error goes to the refusal of the court to direct a verdict for the appellant. The evidence, as shown by the record, in our judgment amply sustains the finding of the jury.

The fourth and sixth assignments of error are on the refusal of the court below to give certain instructions, but in our judgment the court fully presented the questions of law to the jury as applicable to the facts.

Verdict. Special findings. Instructions, The fifth and twelfth assignments of error are that the court erred in not requiring the jury to make special findings of fact on which they based the amount of their verdict, instead of finding a general verdict for damages. This is wholly within the discretion of the jury and the court, and is not reversible error. Mansf. Dig. §5142 (Ind. T. Ann, St. 1899, §3347); Railroad Co. vs Parkhurst, 36 Ark. 371. The seventh, eighth, ninth, tenth and eleventh assignments of error are to the giving of the second, third, fourth, fifth and ninth paragraphs of the charge of the court, which are as follows: “(2) The court instructs the jury that it was the duty of the defendant to stop the use of the sewer whenever, from any cause, it became so out of repair as to cast filth and foul water of a noxious and dangerous character upon the premises of the persons residing along its route, until the same could be repaired and put in good order; and if the jury shall believe from the evidence that the sewer was out of repair from time to time during, say two or three years before the institution of this suit, and that the defendant continued to use it when so out of repair or in damaged condition, filth and foul water of a noxious and dangerous character were thrown upon and around the premises, then he is entitled to recover such sum as would compensate him for the injury sustained by him. (3) And the court instructs the jury that no act of any third party, without the aid or procurement of the plaintiff, could be imputed to the plaintiff as his conduct, or in any wise relieve the defendant from the consequences of its own wrongs, which resulted in injury to the plaintiff. And the defendant cannot be held responsible for any nuisance created by third parties, not acting under its orders or instructions. (4) Upon the questions of damages in this case the court instructs the jury that every man is entitled to the comfortable enjoyment of his own home; and if you shall find, under the instructions of the court, that the plaintiff is entitled to recover in this action, and that the plaintiff’s home was rendered uncomfortable and inconvenient by the misconduct of the defendant, then they should award him in their verdict such sum as will compensate him for that injury; and the court instructs the jury that, while there is no arithmetical rule for estimating the damages in such a case, yet the causing of such discomfort and inconvenience to the plaintiff would be an injury in the eye of the law, the extent of which the jury may measure in damages, in view of all the facts and circumstances of the injury. (5) And if they shall further find that any of the plaintiff’s children, in his own home and under his control, were made sick from the filth and foul water cast upon his premises, then they may consider, in fixing the amount of their verdict, any money expended by him in their proper medical care and treatment, and also the damage, if any, which he may have sustained by reason of the loss of the services of any of them during the period of their sickness, if they were of sufficient age and capable of rendering any service to him or the family when in a state of health; and the court instructs the jury that the services of a child are, no more than the services of the wife, to be estimated by the merely physical and gross standard. If the jury also find that the wife of the plaintiff was made sick by reason of the filth and foul water cast upon his premises, then in assessing the amount of damages which would compensate the plaintiff in this case, it is proper for them to consider the loss of the society and the services of his wife during the period of her sickness, if any, and also any sums of money he may have expended in the proper care and attendance upon her during her sickness. . And the court instructs the jury, in this connection, that a wife’s services to her husband are not to be valued as the services of a mere hireling. The frugality, industry, usefulness, attention, and tender solicitude of a wife and the mother of children make her services greater than those of an ordinary servant, and therefore worth more; and those elements should be considered, so far as the evidence discloses them, in making a money estimate of the value of her services, and in this case the loss of services of the wife must be confined to three months in the fall of 1898. ” “(9) The court further instructs the jury that the Adams Hotel Company had a right to construct the sewer in question, and use it for the purpose for which it was constructed, so long as it kept it in proper repair; and if you believe from the evidence that the defendant hotel company did use all reasonable means to keep said sewer in repair, and that it was prevented from doing so by the wrongful conduct of the plaintiff, or of others for whose acts the defendant was not responsible, and that all the nuisance which was created was the result of the wrongful conduct-of the plaintiff and such other persons, then you should find for the defendant. ” The court also gave the following charges to the jury in paragraphs 6, 7 and 8: “(6) The court instructs the jury that the plaintiff cannot recover for any of the injuries complained of in his complaint unless he has shown by a fair preponderance of the evidence that the sewer from the Hotel Adams was the proximate cause of the sickness of plaintiff’s wife and children. (7) The court further instructs the jury that, before the plaintiff can recover for the annoyance alleged to have be [been] caused by said sewer, he must show by a fair preponderance of the testimony that the sewer in question was negligently constructed, or not kept in proper repair, through the fault of the Adams Hotel Company. (8) The court further,instructs you that, before you can find any damage for the plaintiff, you must believe from the testimony that he has suffered some real injury; in other words, you cannot base your verdict on any imaginary injury, but it must be a real and substantial injury.” We believe the foregoing instructions of the court fairly presented to the jury the law of the case- and the appellee cannot justly complain that its rights and interests were not properly presented.

Nuisance. Special damages. Loss of services. Wife and child. Appellant contends that these instructions were inconsistent, misleading, and confusing, but we think that a fair construction of the charge as given above is that the jury should only consider the damage resulting from the wrongful acts of the appellant, and eliminated from the consideration of the jury any damage resulting from other causes. Thomas vs. Kenyon, "l Daly, 132. Though a nuisance be a public nuisance, yet if special damage accrues to a particular person, either direct or consequental, he can recover; and, if the nuisance is proved, the law infers damages. 6 Lawson, Rights, Rem. & Prac. §§ 2971-2978, and cases cited. Such acts as proved in this case have been declared by the courts to be nuisances. Baltimore & P. R. Co. vs. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719; 6 Lawson, Rights, Rem. & Prac. § 2981, and cases cited; Walter vs Selfe, 4 De Gex & S. 321; Smiths vs McConathy, 11 Mo. 517. The complaint charged results which were actionable per se. 6 Lawson, Rights, Rem. & Prac. § 2989. Sickness produced is an element of damage (Mills vs Hall, 9 Wend. 315); and sickness of wife (Ellis vs Railroad Co., 63 Mo. 131), and discomfort and inconvenience (Baltimore and P. R. Co. vs Fifth Baptist Church, supra; Wesson vs Iron Co., 13 Allen, 95; Randolf vs Town of Bloomfield, 77 Iowa, 50, 41 N. W. 562.) To permit water in a vault to percolate through the soil upon a neighbor is a nuisance. Ball vs Nye, 99 Mass. 582; Ross vs Butler, 19 N. J.( Eq. 294. A parent is entitled to the services of his children, and can recover for any injury resulting in loss in this respect. Tiff. Pers. & Dom. Rel. pp. 267, 268, § 133; Kennard vs Burton, 25 Me. 39; Wilton vs Railroad Co., 125 Mass. 130; Railroad Co. vs Miller, 49 Tex. 322; Klingman vs Holmes, 54 Mo. 304. He could recover for medical services. Tiff. Pers. & Dom. Rel. p. 274; Honey vs Railroad Co. (C. C.) 59 Fed. 423; Navigation Co. vs Hollander, 8 C. C. A. 169, 59 Fed. 417; Dennis vs Clark, 2 Cush. 347. The husband can recover for loss of wife’s services and society. Tiff. Pers. & Dom. Eel. p. 72, notes and cases cited. The wife’s services are not measured as the services of a mere servant. Id. 73; Railroad Co. vs Goodman, 62 Pa. St. 329. The Same rule is applied to the services of a child under the decisions which are carefully reviewed by Mr. Tiffany (1896;) Cooley, Torts, p. 228. And for medical expenses. Id. p. 226; 3 Bl. Comm. 140. The rule both as to wife and child is founded upon the peculiar value of services rendered in such relations. The instructions in this regard were given in nearly the same words of adjudged cases. Cooley, Torts, p. 228; Carey vs Railroad Co., 1 Cush. 475; Randolf vs Town of Bloomfiled, 77 Iowa, 50, 41 N. W. 562; Kearney vs Farrell, 28 Conn. 317; Rogers vs Smith, 17 Ind. 323; Shields vs Yonge, 15 Ga. 349; Sykes vs Lawler. 49 Cal, 236; Durden vs Barnett, 7 Ala. 169; Whitaker vs Warren, 60 N. H. 20; Meese vs City of Fon du Lac (Wis.) 4 N. W. 406. We are of the opinion, from an examination of the record and the briefs of counsel, that the verdict of the jury and judgment of the court were correct, and the judgment of the court is therefore affirmed.

Clayton and Thomas, JJ., concur.