Harper v. Standard Oil Co.

Damages: negligence: liability. In the case at bar there is no evidence showing that in constructing the tanks complained of defendant did anything calculated to excite just apprehension of fire in the minds of persons of normal nervous sensibility. The mere fact that the rental value of the plaintiff’s property was injured does not render defendant liable, in the absence of any showing of negligence. Held, that the trial court correctly sustained the demurrer to the evidence.

Appeal from the Ralls Circuit Gourt. — ITon. Reuben F. Rot, Judge. A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. 3 Bl. Oom. 216. Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated and renders the owner or possessor liable for all damages arising from such use. Woods’ - Law of Nuisance S. 1, and authorities cited. The rule is -of universal application, that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining-proprietor or of his neighbor, even in the pursuit of a lawful trade. Brady v. Weeks, 3 Barb. 159; Wiers Appeal, Yl Pa. St. 230. .We do not contend that the erection and maintenance of-gasoline and kerosene tanks and the building for barreling the same, on defendant’s premises, necessarily constituted a nuisance per se. That depends on the locality, the quantity, and the surrounding circumstances. In this case it should have been left for the jury to determine whether from the dangerous character of defendant’s business, the proximity to plaintiff’s buildings and all the facts proved upon the trial, defendant was chargeable with maintaining a private nuisance, and answerable for damages arising from the depreciation of the market and rental value of plaintiff’s property. Ileeg v. Licht, 80 N. Y. 5Y9. The court erred in refusing to find and so instruct the jury that the defendant’s gasoline and oil works was dangerous in itself to plaintiff’s and their property, and was a private nuisance, and that defendant was liable to the plaintiffs whether it was carelessly kept or not. Aldreds case, 9 Coke, 58; Hay v. Cohoes Co., 2 N. Y. 159; Pixlev v. Clark, 35 N. Y 523. No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with a reasonable and comfortable enjoyment by another, of his property, or which occasions material injury to the property itself, a wrong is done to neighboring owner for which an action will lie. And this, too, is without regard to the locality where such business is carried on; and this, too, although the business may be a lawful business and one useful to the public; and although the best and most approved appliances and methods may be used in the conduct and management of the business. Susquehanna Fertilizer Co. v. Malone, 73 Md. 276. * * * The motion to set aside the judgment entered on plaintiff’s nonsuit is not preserved in the bill of exceptions. There is, therefore, nothing for this court to review. R. S. 1889. sec. 2304. This case has been finally adjudicated. Harper v. Die Co., 74 Mo. App. 644. “It shall not be necessary for the review of the action of any lower court on appeal or writ of error, that the motion for new trial in arrest of judgment or instructions filed in the lower court shall be copied or set forth in the bill of exceptions filed in the lower court: Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court.” “When any bill of exceptions shall have been allowed and signed, the clerk of the court shall, within the same period, cause the same to be written out at full length, unless previously done, and attach such bill of exceptions to the roll as part thereof.” Sec. 3235. “It is true that motions for new trial and in arrest have been copied into tbe transcript by tbe clerk, but such motions form no part of the record, unless so made by being incorporated in tbe bill of exceptions.” Sherwood, J., in Blount v. Zuik, 55 Mo. 455; State v. Shekam, 25 Mo. 565. That motions made in any case can not be noticed by appellate courts, unless they are set out in tbe bill of exceptions, has been so frequently and uniformly decided in this State that tbe point must be considered definitely settled. Rombauer, J., in Kobn v. Lucas, 17 Mo. App. 29; Banks v. Finks, 40 Mo. App. 367. It is a well settled rule of procedure that no motion can form a part of tbe record unless embodied in tbe bill of exceptions. Tbe clerk in this case has copied tbe motion for new trial and in arrest, as part of tbe record proper. This action by tbe court could not possibly make tbe motion a part of tbe record. This could only be accomplished by having them embodied in tbe bill of exceptions, and this signed by tbe judge.” Biggs, J., in Puller v. Thomas, 36 Mo. 105-107; Loudon v. King, 22 Mo. 336; State v. Wall, 15 Mo-. 208; Coquard v. Pendergrast, 47 Mo. App. 243-254; Ins. Co. v. Hill, 12 Mo. 148. Tbe court properly sustained tbe demurrer to plaintiff’s evidence. It failed of establishing any right of recovery. Tbe action is one for damages for alleged injury to plaintiff’s lands resulting from tbe maintenance of an alleged nuisance by tbe defendant. Tbe -alleged nuisance is tbe storing of coal oil and gasoline in tanks on defendant’s adjacent premises, which it is alleged expose plaintiff’s building to tbe danger of tbe loss by fire. There was no evidence of any careless or otherwise dangerous handling or use of fire by tbe defendant, or by anybody, on or near tbe premises ;' nor evidence of any want of care in tbe construction or operation of tbe plant whereby tbe hazard of fire became imminent or in anywise probable. In tbe absence of such evidence plaintiff was not entitled to recover and tbe court properly awarded tbe peremptory instructions. Judge Cooley in Ms work on Torts, after quoting Blackstone’s definition of nuisance as “Being anything done to the hurt or annoyance of the lands, tenements or hereditaments of another,” says, “As the definition assumes the existence of wrong, those things which may be annoying and damaging, but for which no one is at fault, are not to be deemed nuisances, though all the ordinary consequences of nuisances may flow from them.” Cooley on Torts [2 Ed.], 671. It is held that a railroad company may lawfully locate its road and run its locomotives and cars within close approach to adjacent hnildings and that the escape of sparks and a consequent loss of property by fire in the absence of proof of misuse or want of care, is damnum absque injuria. And this is the well recognized doctrine in our own State before the act of 1887, making the liability absolute. Eitch v. Railroad, 45 Mo. 322; Kenney v. Railroad, 70 Mo. 243; Palmer v. Railroad, 76 Mo. 217; Otis v. Railroad, 112 Mo. 622; Mathews v. Railroad, 121 Mo. loe. cit. 317. The absolute liability by the old common law for setting out fire on.one’s own premises whereby the premises of an adjoining proprietor is destroyed, has never obtained in this State. That rule or custom was abrogated by statute 6, Anne, chapter 31, and so was transplanted into this country as part of the common law. Accordingly in all actions for damages by fire our courts have limited the right of recovery to proof of actual neglect or want of ordinary care. Miller v. Martin, 16 Mo. 508; Catron v. Nichols, 81 Mo. 80.