NISSEN v. DONOHUE, 271 Wis. 318 (1955)

73 N.W.2d 418

NISSEN and others, Plaintiffs, vs. DONOHUE, Defendant, and four other cases.

Supreme Court of Wisconsin.November 9, 1955 —
December 6, 1955.

APPEALS from orders of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Reversed.

Involved are separate actions that were commenced on November 20, 1952. They were consolidated for trial. The defendant, James J. Donohue, is engaged in the trucking and dumping business and operated a dump in the city of Glendale, Milwaukee county, which consisted of a former gravel pit. The plaintiffs, Herbert R. Nissen, Gea B. Nissen, Hilda I. Ropeter, Ferd Santa Maria, Nell Santa Maria, Arthur J. Rinzel, Ann M. Rinzel, Lesley Zentgraf, and Leona Zentgraf owned real estate and resided in the immediate vicinity of the pit so used as a dump. The actions were brought to recover damages for an alleged nuisance resulting from the operation of the dump. They were tried to the

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court and a jury. By its special verdict with reference to question 1, the jury determined that in the period, December, 1950, until November 20, 1952, there existed an unreasonable emission of disagreeable and offensive odors from the materials dumped by Donohue in the former gravel pit; as to question 2, that the disagreeable and offensive odors permitted to be sent over the premises of the respective plaintiffs were an efficient cause of substantial and tangible discomfort to persons of ordinary sensibilities circumstanced as were the plaintiffs; as to question 3, that such odors were an efficient cause of physical discomforts suffered by the plaintiffs during the summers of 1951 and 1952; as to question 4, that such odors were an efficient cause of substantial impairment of the use, comfort, and enjoyment of the property and rights and privileges of persons of ordinary sensibilities circumstanced as were the plaintiffs; as to question 5, that such odors were an efficient cause of private or special injury to the property rights or privileges of the plaintiffs in respect to their use and enjoyment thereof; as to question 6, that hydrogen sulphide gas, which was generated in the dump, existed in sufficient quantities and degree of concentration so as to have been an efficient cause of physical-property damage to several of the plaintiffs.

The court answered question 7 which inquired as to the amount of damage that was sustained by the plaintiffs with respect to physical-property injury. The jury answered question 8 of the special verdict which inquired as to the amount that would reasonably compensate the plaintiffs for damages peculiar to them, suffered as a natural result with regard to their respective physical comfort. The jury also answered question 9, which inquired as to damages peculiar to the plaintiffs suffered as a natural result with regard to their respective property rights or privileges, other than for physical property. The jury found that each of the respective

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plaintiffs had sustained a loss of $1,000 with reference to the item inquired about in question 9.

The court granted the plaintiffs’ motion for judgment upon the verdict except for the damages found to have existed with respect to the subject matter of question 9. Primarily for the reason that the plaintiffs “inadvertently, may have failed to offer proof upon which an amount of actual damages could be found and sustained [with reference to the subject matter of question 9], it would be an injustice to them for the court to change the answers of $1,000 to $0.06,” the court by order granted a new trial in the interests of justice solely with reference to the subject matter covered in question 9.

The court denied the defendant’s motions after verdict for judgment in defendant’s favor. It granted the defendant’s motion for a new trial, but limited the issue as heretofore indicated. The defendant appealed from the order of the court limiting the issue at the new trial.

The plaintiffs appealed from that part of the court’s order denying plaintiffs’ motion for judgment on the verdict; also from that part of the order limiting the issue to the question of diminution and depreciation of the rental or usable value of the plaintiffs’ property. In the notices of appeal, the plaintiffs requested instructions from this court as to whether at the new trial the matter of punitory damages ought to be submitted for the jury’s determination.

For the plaintiffs there was a brief and oral argument b Lawrence A. Willenson of Milwaukee.

For the defendant there were briefs by Runkel Runkel
of Port Washington, and oral argument by Paul D. Runkel.

STEINLE, J.

The defendant’s principal contention on this appeal is that the trial court erred in limiting the consideration at the new trial merely to the item of damages for depreciation or diminution of rental or usable value of the

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property of the respective plaintiffs, as referred to in question 9 of the special verdict. Defendant maintains that the issues are not severable, and that in the interests of justice, all of the issues ought again to be submitted for the jury’s consideration at the new trial.

It is the position of the plaintiffs that the trial court erred in granting a new trial. They maintain that they are entitled to judgment upon the verdict. However, in the alternative, they submit, that in the event that a new trial with reference to the damages sustained by the plaintiffs in relation to their property rights or privileges, other than for physical-property damage sustained, is to be held, that they are entitled to a determination not only as to the diminution of the usable value of the property during the continuance of the nuisance, but also as to damages for the loss of comfortable enjoyment of plaintiffs’ premises and for annoyance, discomfort, and inconvenience. They contend also that they are entitled to punitory damages.

No competent evidence was presented at the trial with reference to the subject of diminution or depreciation of the rental or usable value of the plaintiffs’ property. The court properly determined that the jury’s answer with respect to question 9 could not stand. The court found that a miscarriage of justice would result were the plaintiffs not to be entitled to a determination of such consideration upon competent evidence. It was for such reason that the court granted a new trial.

In its contention that the issues are not severable and that it will not be in the interests of justice to grant a new trial only with reference to the limited consideration embraced in question 9 of the special verdict, the defendant points out that:

“In any event, a new trial on the issue of damages as set forth in question 9 of the special verdict will require a

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complete retrial using the same evidence as was used at the original trial on all the issues of the case, except the limited issue raised by questions 6 and 7 of the special verdict which related to physical-property damage.

“Under question 1 of the special verdict, in order to determine that there was an unreasonable emission of disagreeable odors from the dump, evidence must be produced showing the extent, persistency, and amount of odors.

“Under question 2 of the special verdict, the identical evidence is required to prove that the odors were an efficient cause of the physical discomfort of the plaintiffs.

“Under question 3 of the special verdict, the same evidence will again be used to determine that the odors were or were not an efficient cause of plaintiffs’ physical discomforts.

“Under question 4 of the special verdict, which relates to the impairment of the property rights and privileges of the plaintiffs, the same evidence is again used.

“Under question 5 of the special verdict, again the evidence as to the intensity, degree, and effect on the persons themselves is necessary to prove that the odors caused the injury to the property rights of the plaintiffs.

“Question 6 of the special verdict stands alone as not being related directly to the effect of the odors on the persons of the plaintiffs. This is also true of question 7.

“It must necessarily follow that the true measure of damages, if any, which the plaintiffs have suffered under the limited issue of damages raised in question 9 of the special verdict is dependent not on the previous answers of the jury as to the question of liability, but must depend upon all the evidence, including the evidence which defendant’s witnesses offered showing that the odor had little effect upon them.

“A new trial, therefore, limited to the proof of damages only, would not bring before the jury sufficient facts to render a just verdict.”

It is considered that the defendant’s position in this regard is reasonable and sound. We are of the opinion that the interests of justice require that a new trial be granted upon all issues raised under the pleadings.

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Since a new trial on all issues must be ordered, we deem it unnecessary to determine the question raised by the plaintiffs on their appeal.

By the Court. — Orders reversed, and cause remanded with direction that there be a new trial with respect to all issues under the pleadings.