Gempp v. Bassham , 60 Ill. App. 84 ( 1895 )

Mb. Justice Boggs

deliveeed the opinion of the Court.

We are constrained to the opinion that the court misconceived the law governing the case and thereby the jury were led to a verdict against the manifest weight of the evidence.

Certain instructions given the jury were so framed as to clearly imply that the appellant could not prevail and recover damages unless the actual amount of such damages had been established by the evidence. In another instruction the jury were advised that unless the appellant “ had proven the amount of the damages he had actually sustained he could recover only nominal damages.”

In view of the rule of law hereinafter expressed touching the question of proving damages in cases such as the one at bar, the instructions above referred to were wholly misleading and well calculated to produce the erroneous verdict returned by jury.

As to the measure of damages, the court instructed the jury that “ in no event, under the pleading and proof, if you find for the plaintiff, can he recover greater damages for the injury to the use, occupation and enjoyment of his premises than the depreciation of the rental value of such premises.”

Where the injury is to physical comfort and results in deprivation of the comfortable enjoyments of a home, the measure of damages is not the depreciation in the rental value of the premises occupied by the plaintiff, but compensation for such physical discomfort, and deprivation of the use and comforts of the home.

The amount in dollars necessary to compensate the plaintiff in such cases is not to be estimated by witness or the 66 actual amount ” thereof established by testimony or calculated by any arithmetical rule.

It must be left to the sound judgment, experience and discretion of the jury to fix the amount in view of the facts of each particular case. Amer. and Eng. Ency. of Law, p. 28; Sedgwick on Damages, 8th Ed., Vol. 1, p. 65 ; B. P. Rwy. Co. v. 5th Baptist Church, 108 U. S. 317; Randolph v. Town of Bloomfield, 77 Iowa 50.

Under the influence of the same erroneous view of the rule as to the measure of damages and the manner of proof thereof, the court refused to permit the appellant to prove that effluvia from the stable deleteriously affected the health of his wife.

Proof should have been admitted of any fact which would aid the jury in determining whether and to what extent the plaintiff and his family had been deprived of the wholesome and comfortable use of his home by the stenches, noises, etc., from the stable.

The effect of such stenches or noises upon any person who might be in plaintiff’s house, whether a member of his family or a mere caller, would tend to enlighten the jury upon the question whether his dwelling vjas rendered physically uncomfortable as a home and was therefore competent to be proven. Ellis v. Council Bluff R. R., 22 Mo. 131; Loughbram. v. Des Moines, 72 Iowa 382; Pierce v. Wagner, 29 Minn. 355.

It is true the declaration did not aver that odors, etc., from the stable caused illness of plaintiff’s wife.

Such an averment would no doubt have been necessary had plaintiff sought to recover special damages because of the illness of his wife, as for instance, moneys expended for medicines, medical treatment, etc., but was not necessary in order to admit proof that his home was rendered physically uncomfortable and unwholesome by the nuisance created by the appellee.

The character of plaintiff’s dwelling house, its value, and its rental value before and after the location of the stable near it, were facts proper to be made known to the jury and proper for their consideration, together with every otherfact tending to show the plaintiff had been deprived of the comfortable use and enjoyment of his home, in order to enable them to correctly estimate the amount necessary to compensate him for the injury inflicted by the appellee.

But the depreciation in rental value is not the measure of bis damages nor was it incumbent upon him to establish by the evidence the “ actual amount ” of Ms damages.

The judgment must be and is reversed and the cause remanded.