186 SOUTHERN ICE & UTILITIES CO. V. BRYAN. [187 • SOUTHERN ICE & UTILITIES COMPANY V. -BRYAN. 4-2963 Opinion delivered April: 10, 1933. EVIDENCE—OPINION OF NON-ExPERT.—A nonexpert witness may testify that her children, after being exposed to ammonia fumes from an ice plant operated near her home, were pale and sick. 2. TRIAL—INSTRUCTION ASSUMING DISPUTED FACTS.—Instructions
which assume that plaintiff's home was in a residential district were not erroneous wheie the undisputed evidence was that plain-•/ tiff's home wai occupie : d a . s such long before defendant.established • its ice plant on ailjoining property.
ARK.] SOUTHERN ICE & UTILITIES CO. v. BRYAN. 187 3. NUISANCE—ICE PLANT.—The operation of an ice plant . in a residential district, no matter . how well construcied and , conducted,. is * a nuisance, where it destroys the comfort ' of persons occupying adjoining premises. 4. NUISANCE—DAMAGES.—The measure of damages to a home by erection of an ice plant on an adjoining lot is the , difference between the fair market value immediatelY .prior to erection of the plant and its fair market valu2 after the erection and operation of . the plant. Appeal from Hot Spring . Circuit Court ; Thomas .E. Toler, Judge ; affirmed. • • STATEMENT BY THE COURT. Appellee, Chas. A. Bryan, oWned lot 4 in block 106 of Lund & Hill's sur yey of . Malvern:Hot Spring County, Arkansas, which he occupied , a§ a homestead with his famr ily. This . lot had been occupied a g.a2hOinestead by appel7 lee and his predecessors . in title for more than . fifty years. In 1930 appellant, Southern Tee & Utilities Company, constructed an electric ice plant on • lots adjoining the home of the appellee, and thereafter opefated' the' game in course of business. On January 16, • 1932 i . apPellee—filed this suit, seeking to recover damageS in the sum of $3,000 for alleged depreciation in the 1: alue- of . his 'property,'by reason of the construction and Operation Of • the ice plant. •There was a. trial before a • jury, which resulted in a judgment in favor ofaPpellee for $1,000, and this suit is prose cuted to revel : se • said judgment. • • The jury was warranted in •finding the following facts: _ - That appellee and r -his predeceisors in title , had re:- sided upon and occupied lot 4 in: block 106 for more•than 50 years ; that . the dwelling -house occuPied. , by: appellee and his family was in a residential tseCtion of- th0 city:of Malvern; that, over the expressed protest of appellee,:the appellant in 1930 erected. an ice . manufacturing plant on lot 5, block 106, adjoining appe . 11ee,'s property ; that the wall of- the appellant's .i.c0 plant -was.within,15 or-16 feet of appellee's bedroom; that the ice plant has been -continuously operated since its erection in 1930 ; that:motors were run day and night- by the - ice plant during,the sum: mer seasons ; that the noises arising from the operation of said motors was unbearable ; thatappellant permitted
188 SOUTHERN ICE & UTILITIES CO:A): BRYAN. [187 fumes ffoni ammonia tO eScape frOm its plant, which passed into and upon the premises of appellee; that at times it' was necessary fôr' appellee to remove his grandchildren from certain portions of his home to other places to escape such fumes ; that appellant, in the construction of said plant, erected a tower 45 or 46 feet high which conveyed water over a fall for the purpose of breaking-it up, and that the noises from this fall was a constant menace to . appellee's nervous , system ; that these noises and disturbances were continuous. That gasoline motor trucks were loaded on the southeast side 'of the ice plant and opposite the residence of appellee ; that the starting and stopping of said trucks created loud and disturbing noises which materially disturbed appellee and his familY in the occupancy of their home ; that appellee's property was wOrth $5,000 'prior to the erection of the ice plant, and that it is not now worth more than $2,500. . The trial court submitted appellee's case to the jury upon -the following instructions, which are complained about on this appeal : " This suit was instituted by Chas. A. Bryan,- plaintiff, versus defendant, -Southern Ice & Utility Company, for the sum of $3,000 it is alleged to be. due him because of -certain noises and odors causing discomfort, etc., as alleged, einanating from the ice plant in its operation. Defendant, on the other hand, denies that it is to pay the plaintiff any damages -. as no such conditions prevail, therefore plaintiff should not recover as against them. On the other hand, if -they should prevail in the case, as stated, you have the evidence before you, the complaint read to you,- and the issues are clearly drawn and presented to you, and now I shall reaa to you the Written -instructions. " 'Plaintiff's-instruction No. 1 : You are' instructed that a 'nuisance, in the ordinary sense in which . the word is used, is anything that produces an annoyance—anything that disturbs ohe or is offensive; but, in legal phraseology, it is applied' to that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of bis own property, real or personal, working an obstruction. of, or injury to, a right of another
ARK.] SOUTHERN ICE & UTILITIES CO. v. BRYAN. 189 Or of : the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. " 'Plaintiff's instruction No. 2: You are instructed tbat, if you find from a preponderance of the evidence in 'this case that the plaintiff is the owner of lot 4, block 106, of the city of Malvern, Arkansas, and uses and occupies same as his homestead, as alleged in his complaint, and the defendant, Southern Ice & Utilities Company, is the owner of lot 5 adjoining plaintiff's property above described in said block 106 of Malvern, and that said property is situated in a residential Section of the city of Mal-vern, and if you further find from a preponderance . of the evidence that said defendant -has constructed,:maintains and • operates an ice Manufacturing plant on its property in -such close Proximity to plaintiff's 'property and home that, in the- carrying on of its ice manufacturing business in the *ordinary and cusfomary manner and as said plant Was constrncted to be operated,' it causes and permitsooh-tinuOus and successive noiSes to emahath therefrom,:to such an *extent aS to-interfere with and disturb The plaintiff -and his farnily in the use, occupancy and' enjoYment of his property as a dwelling house and kome, and t6 such an extent as would so disturb and. interfere with any ordinary persons of family occhpying said prOperty as a dwelling and so as 'to cause a nuisance to plaintiff and his family in the enjoyment of his home, and' that said nuisance is permanent to said Property ; and if you further find from a preponderance of the evidence in this case that the market value of plaintiff's property was diminished and damaged by reason of the nuisance, if an- r, created and maintained by the defendant in the construction and operation of said ice Manufacturing plant, then your verdict should be for the plaintiff in this- action. - " 'Plaintiff's instruction No. 3: If You find from a preponderance of the- evidence in this oase that the plaintiff is entitled to recover in this actin'', and that : the damage to plaintiff's property, if any, is permanent,- then your verdict should be for an amount equal to the difference in the fair market value of plaintiff's property immediately before and after the damage, if any, cause4
190 SOUTHERN-ICE & UTILITIES CO. v. BRYAN. [187 by the construction, maintaining,and operating :of. . said ice plant by- the defendant, as shown by the evidence in this case.' " - Other facts necessary to a determination of the issues presented on this . appeal will be stated in the opinion. • H. B. Means and James D: Head, for appellant. • John L. McClellan, for appellee. JOHNSON, C. J., (after stating the facts). Appellant first complains that the trial court erred in permitting a nonexpert witness to testify that her children, after being exposed to ammonia fumes, "were pale and sick:" This . question was :decided adversely to appellant's contention in the case of Kansas City Southern . Ry. Co. v. 'Cobb, 118 Ark. 569, 178 S. W. 383,:where the court held: "Where one person is acquainted with another, and they come in contact -with each ,other frequently, it is.not a matter of expert knowledge for one to . tell whether the other, appears ,to be, sick , or. well. - These. are matters of common experience and observation, and a nonexpert witness-, after stating the .facts upon which; his opinion is-based; may even giye his opinion in such matters." Appellant next complains that the:trial court erred in giving certain ,Mstructions, on behalf of appellee, in refusino- to give certain instructions on behalf of .appellant, and in ,modifying certain instructions. The instrue, fions given on .behalf . of appellee are quoted at length in the statement of facts. Appellee's:first instruction is a quotation from Ex parte Foote, 70 Ark. 12,,65 S. W. 706. Appellant contends that, notwithstanding the- instruction is a correct definition of a nuisance, the same is academic in-so far as application to this case i§ concerned. •This is not the fact. A. nuisance -Was the thing complained about, and, Of course, it- was 'perfectly proper for the trial court to explain to the jury and give to them a definition of what a nuisance was in law. Appellee's instruction No. 2 was likewise a correct declaration of law, and the trial court did not .commit error in giving it to the jury. . It is earnestly insisted on behalf of appellant tbat the trial co -urt assumed in appellee's instructions that
ARK.] - .SOUTilEEN ICE -& UTILITIES Co. 'V. BRYAN: 191 the- Bryan proPerty was- chiefly valuable for residential property when that *as a sharply contested issue'. APpellant is : mistaken When it says . that, this was a,contested issue in the laVi guit. • The uncontradictedlestiMony shawfs that 'appellee' and : his family Were occupying this property and residing•thereon • long• prior to the time ihat appellant undertook and did establish its ice plant adjacent to his property, • and. this, notwithstanding it was notified- by ' appellee that'he protested its mannfacturing plant adjacent tO his home. . • • • . • • ... • This cdurt Biekley v. Morgan Utilities Company,Incorporated, 173 Ark: 1038, 294 S. W: 38 : "And it may be said here that it matters not. how well constructed or condueted an .ice plant may 'be, it is nevertheless a nuisance if bUilt and operated in a residential district so that it destroys the comfort. of persons owning.and occupying adjoining premrses,rcreating annoyances .. which • render life uncomfortable. . Certainly, it cannot . he said that the erection and, operation•of .an ice plant within six feet of a bedroom window would not yery greatly annoy the person8 occupying the:.room, ;in addition to the fact, as shown . by the proofn this .case,. that the property, itself .would be : greatly damaged, •worth..much less than-if the ice plant: was not. operated, there. " -) •• The effect •Of• .the -. -holding• of' this court in- Bickley .v: M . organ Utilities . -Co.; -Inc.; 'supra,: yas that, whoseever undertakes to r and: does; establish in a resideritial•section an ice manufacturing plant is *responsible as- a matter of law 'for . all damageS whieh . flow direetly frOm its- operation. This was -the theory or p which the.instant case was presented • to the . jury by! the 'Court's instructions; and we think the court 'committed-no-error in so doing.: • ' -It is' contended bY appellant that certain . -of the-instructions are in conflict with each other. To this We'canj not agree:. We think that . when the .cdurt's whole charge is : Tead: together it..preSents • the issues of the case cOncisely, fairly and clearly.' • • Appellant next coniplahi g that 'the-trial court erred in telling the jury that, if they found for the plaintiff, they should award him the difference between the fair market value of his property immediately prior to the
192 SOUTHERN ICE & UnLITIES CO. v. BRYAN. [187 erection of the ice plant and its fair market value after the erection and operation of said plant, it being contended on behalf of appellant that the correct measure of damage in the case was the difference between the rental value of the property prior to the erection of the ice plant and its rental value after the ice plant was erected and in operation. The case of Junction City Lumber Company v. Sharp, 92 Ark. 538, 123 S. W. 370, is relied upon by appellant as establishing its contention. This case is not authority for appellant's contention. This court, in the Junction City Lumber Compoxy v. Sharp case, supra, said: "In ihe case at bar it is not claimed that any injury was caused to the health by the maintenance of a nuisance, etc. h In the case at bar the testimony shows that people who occdpied appellee's home were made sick by the ammonia fumes which were permitted to escape from its ice plant. Again, in the Junction City Lumber Company case, supra, the nuisance there complained of was a sawmill in close proximity to Sharp's 'home. This •court knows that country sawmills are usually . temporary in duration. In the instant Case, the ice plant is of a permanent character and will probably be maintained much longer than appellee's dwelling No intimation appears in this record that appellant expects to occupy its property far only a temporary length of time. On the contrary, the record reflects that its ice plant is a well-built and regulated establishment, and'is of a permanent character, and therefore its continued operation will effect a continued injury to appellee and his property. Therefore, we think that the court was correct in giving this instruction on the measure of appellee's damage to the jury. Other contentions are made by the appellant for reversal of the case, but we do not deem them of sufficient importance to discuss in this opinion. Let the judgment be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.