Opinion
No. 39817.
January 16, 1956.
1. Nuisance — offensive odors — inadequate garbage bin.
In suit by realty owners against proprietor of grocery for damages for alleged nuisance caused by garbage in bin at rear of store, evidence was insufficient to establish that vermin in house of owners was the result of any nuisance maintained by proprietor, but did establish offensive odors, and that bin was too small to hold all refuse and garbage placed therein and that some of it was blown or scattered on owner's property.
2. Nuisance — damages — instructions — erroneous.
Instruction that if jury found for realty owners, jury should award owners damages for depreciation of rental value of realty, was erroneous because it did not limit depreciation of rental value to acts for which proof showed proprietor responsible.
3. Nuisance — damages — evidence.
In such case, evidence was insufficient to sustain a substantial verdict but was sufficient to establish more than nominal damages.
4. Nuisance — damages to realty — measure of.
Measure of damages was depreciation in rental value of realty, plus any special damages proven, but damages could not be proven by showing rent collected before nuisance and rent collected after nuisance.
5. Nuisance — damages to realty — proper way to prove depreciation in rental value.
Proper way to prove depreciation in rental value was by testimony of a qualified person as to reasonable market rental value without the nuisance, and the reasonable market rental value after creation of the nuisance and rent collected after nuisance.
6. Nuisance — damages — evidence — insufficient for jury to determine amount spent by owner in cleaning premises.
Evidence was insufficient for jury to determine whether sum of $4,680, which was alleged to have been spent during six year period by owners for cleaning up yard, was reasonable, for if proprietor was to be charged with damages for cost of cleaning up owner's realty, it was necessary to show that the expenditure was necessary as result of proprietor's alleged wrong.
7. Instructions — erroneous — comment on weight of evidence — peremptory in character.
Instruction that where testimony of an intelligent witness is undisputed, is reasonable in itself, and is in reasonable harmony with physical facts and facts of common observation among experienced persons and that witness is unimpeached, then jury must act on the testimony, and cannot reject it, was erroneously given because it invaded the province of the jury as a comment on the weight of the evidence and because mandatory in character and practically a peremptory charge.
8. Instructions — same — same — same.
Instruction that evidence, which is not contradicted by positive testimony or circumstances and is not inherently improbable, incredible, or unreasonable, can not be arbitrarily disregarded or rejected by jury even though witness is a party or interested, and, unless shown to be untrustworthy, is to be taken as conclusive or binding on triers of the facts was erroneous, because it invaded the province of the jury and because a comment on the weight of the evidence, and because mandatory in character and practically a peremptory charge.
9. Nuisance — instructions — erroneous.
Instruction which assumed as a fact that proprietor permitted offensive and noxious odors to go onto and into realty owners premises, was erroneous.
10. Nuisance — evidence — erroneously excluded.
Trial Court erred in excluding proprietor's testimony that broken sewer on realty owner's property produced offensive odors because proprietor's answer denied charges that odors came from proprietor's property and did not affirmatively give notice in writing that odors came from broken sewer, since such evidence was not affirmative matter in avoidance that was required by the new pleading act to be set up in written notice.
11. Nuisance — damages — depreciation in value of realty — owners not entitled to — instructions.
In such case, where there was no proof that realty was permanently damaged, trial court erred in refusing to give proprietor's requested instruction that owners were not entitled to recover anything for alleged depreciation in value of realty, since measure of damages was the depreciation in the rental values, not the difference between the market value of the property before and after creation of the nuisance.
12. Nuisance — instructions — erroneous.
Realty owners' instruction, which assumed that realty owners had been subjected to noxious and disagreeable odors was error.
13. Nuisance — instructions — erroneous.
Giving of instruction which may have led jury to believe that mere existence of grocery store at place in question was actionable, was error.
14. Evidence — photograph — improperly admitted.
In such case, where there was no evidence that dead fowls and beer can, shown in photographs, were on realty owners' property by any act of proprietor, photographs should not have been admitted in evidence.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Jones County; F. BURKITT COLLINS, Judge.
Watkins Eager, Jackson; Deavours Hilbun, Laurel, for appellants.
I. Appellants were entitled to a peremptory instruction in that appellees failed to sustain their burden of proof of any causal connection between the acts of appellant and any damage to appellees. Banty v. City of Sedalia (Mo.), 120 S.W.2d 59; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 342; Columbus G. RR. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Cooper v. Aycock (Ga.), 34 S.E.2d 895; Equitable Life v. Mitchell, 201 Miss. 696, 29 So.2d 88; Greenville Insulating Board Corp. v. McMurray, 164 Miss. 809, 145 So. 730; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; McCain v. Wade, 181 Miss. 664, 180 So. 748; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Morgan v. Bell (Ga.), 5 S.E.2d 897; Rogers v. Bond Brothers (Ky.), 130 S.W.2d 22; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Smith v. Lynn (Tex.), 152 S.W.2d 838; State v. Cothron (Tenn.), 113 S.W.2d 81; Tombigbee Elec. Power Assn. v. Gandy, 182 Miss. 638, 62 So.2d 567; Yazoo M.V. RR. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80; 20 Am. Jur., Sec. 1181 p. 1932.
II. Even if plaintiff had proved that any of the garbage on her yard was there as a result of the acts of appellant, which is denied, plaintiff has done no more than show possible damages from appellant combined with damage from other independent sources and has failed to offer any assistance to the jury in arriving at the amount of damages, if any, resulting from the acts of appellant. Plaintiff was therefore entitled to no more than nominal damages. King v. Ruth, 136 Miss. 377, 101 So. 500; Masonite Corp. v. Steede, 198 Miss. 530, 23 So.2d 756; Swain v. Tennessee Copper Co. (Tenn.), 78 S.W. 93.
III. This case must be reversed and remanded for a new trial only on the amount of nominal damages that should be allowed plaintiff in that there was no proof of actual damages from which the jury could do more than speculate and conjecture the amount thereof, if any. Ammons v. Wilson Co., 176 Miss. 645, 170 So. 227; Crystal Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658; Hearsy v. City of New Orleans, 192 So. 148; Huteball v. Montgomery (Wash.), 60 P.2d 679; Kuehn v. Neugebayer (Tex.), 204 S.W. 369; McCaughan v. John Hill Constr. Co. (Mo.), 222 S.W. 917; Masonite Corp. v. Steede, supra; Meridian Star v. Kay, 211 Miss. 536, 52 So.2d 35; St. Louis S.F. RR. Co. v. Rylee, 137 Miss. 759, 102 So. 838; Sexton v. Lauman (Iowa), 57 N.W.2d 200, 37 A.L.R. 2d 353; Shreveport Laundries v. Red Iron Drilling Co. (La.), 192 So. 895; State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; Washington v. Kimmey (Maine), 118 A. 648; White River Levee Dist. v. McWilliams Dredging Co., 40 F.2d 873; 25 C.J.S. 531.
IV. Unquestionably, appellants are entitled to a new trial on the ground that the verdict of the jury is contrary to the overwhelming weight of the evidence on every issue. Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Gerard v. Gill (Miss.), 15 So.2d 478; M. O. RR. Co. v. Johnson, 157 Miss. 266, 126 So. 827, 165 Miss. 397, 141 So. 581; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3.
V. The jury should not have been instructed to believe undisputed testimony of plaintiff. The Court below erred in giving plaintiff Instructions Nos. 6 and 7. Allen v. Lyles, 35 Miss. 513; Clark v. State, 206 Miss. 701, 39 So.2d 783; Coleman v. State (Miss.), 23 So.2d 410; Conn v. State, 205 Miss. 165, 38 So.2d 697; Gurley v. State, 101 Miss. 190, 57 So. 565; D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 145; Davis v. State, 89 Miss. 21, 42 So. 841; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Hughey v. State (Miss.), 106 So. 361; Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53, 199 So. 289; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Secs. 1530, 1688, Code 1942; Vol. I, Alexander's Miss. Jury Instructions, Sec. 141, et seq.
VI. The Court below erred in granting to plaintiff an instruction authorizing punitive damages. Bounds v. Watts, 159 Miss. 307, 131 So. 804; Day v. Woodworth, 14 L.Ed. 181; Druskin v. Gillespie Co. (N.J.), 164 A. 897; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; Hadad v. Lockeby, 176 Miss. 660, 169 So. 691; Illinois Cent. RR. Co. v. Dodds, 97 Miss. 865, 53 So. 409; Laurel Equip. Co. v. Matthews, 218 Miss. 718, 67 So.2d 258; Stillwell v. Barnett, 60 Ill. 210; Stone v. Railroad Co., 53 F.2d 813; Upham as Co. v. Smith (Tex.), 247 S.W.2d 133; Williams v. Newberry, 32 Miss. 256; 52 Am. Jur., Trespass, Sec. 57; 25 C.J.S. 718-19.
VII. The Court below committed error in allowing the jury to consider as part of the damages alleged expenses incurred by plaintiff in cleaning up her property, the same not having been sued for in the declaration.
VIII. The Court below committed error in excluding evidence tendered by appellant of other causes of odors on plaintiff's property and of other causes of loss of rentals by plaintiff. Buckley v. Franklin Sav. Bank, 15 N.Y.S.2d 477; Chicago St. L. N.O. RR. Co. v. Provine, 61 Miss. 288; Emery v. Monongahela W. Penn Pub. Ser. Co., 163 S.E. 620; Mickey v. Sears, Roebuck Co., 76 A.2d 350; North America Wines Corp. v. Wine Growers Guild, 127 N.Y.S.2d 337; Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459; Spruance v. Myerdirck, 43 A. 479; Williams v. Altruda (R.I.), 58 A.2d 563; Sec. 1475.5, Code 1942; 71 C.J.S. 1097.
IX. The Court below committed error in refusing to grant appellant its requested Instruction No. 18 to the effect that the plaintiffs were not entitled to recover anything for any alleged depreciation in value of their property. Banks v. Moshier, 47 A. 656; Beam v. Birmingham Slag Co. (Ala.), 10 So.2d 162; Bruskland v. Oak Theater, 254 P.2d 1035; Chesapeake O.R. Co. v. Carmichael, 184 S.W.2d 91; Fowler v. Crown-Zellerbach Corp., 163 F.2d 773; Fragner v. Fischel, 126 N.Y.S. 478; Gulf C. S.F. RR. Co. v. Seydler, 132 S.W.2d 453; City of Hazard v. Eversole, 133 S.W.2d 906; Kugel v. Village of Brookfield, 54 N.E.2d 92; Loughran v. City of Des Moines (Iowa), 34 N.W. 172; Malone Freight Lines, Inc. v. Pridmore, 71 S.E.2d 877; Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 So. 26; Shirley v. Pipeline Co. (Mo.), 37 S.W.2d 518; 66 C.J.S. pp. 958, 978.
X. The Court below committed error in granting plaintiff's Instruction No. 5 in that it constituted an assumption as a fact of a controverted matter and for other reasons. Cunningham v. State, 87 Miss. 417, 39 So. 531; Fore v. State, 75 Miss. 727, 23 So. 710; Marble v. State, 194 Miss. 386, 15 So.2d 693.
XI. The Court below erred in granting to plaintiff Instruction No. 1. Alford v. Illinois Cent. RR. Co., 86 F. Supp. 424; Carr v. Fox (Ohio), 31 N.E.2d 713; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Hines v. McCullers, 121 Miss. 666, 83 So. 734; McLeod Lumber Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274; Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 184 So. 426; Mississippi Power Co. v. Ballard, 170 Miss. 479, 153 So. 874; New Orleans N.E. RR. Co. v. Miles, 197 Miss. 846, 20 So.2d 657; Simon v. Desporte, 150 Miss. 673, 116 So. 534; Waxman v. Realty Corp., 60 N.Y.S.2d 43; Yazoo M.V. RR. Co. v. Aultman, 179 Miss. 109, 173 So. 280; 66 C.J.S. 751, et seq.; Vol. I, Alexander's Miss. Jury Instructions, Secs. 53, 60, 3682 p. 21.
XII. The Court below committed error in allowing the introduction of pictures in evidence. Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; 32 C.J.S. 620.
Melvin, Melvin Melvin, Laurel, for appellees.
I. In reply to appellants' Point I. Greenville Electric Corp. v. McMurray, 164 Miss. 809, 145 So. 730; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 342; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Rogers v. Bond Brothers, 130 S.W.2d 22; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Thomas v. Miss. Products Co., 208 Miss. 506, 44 So.2d 556.
II. In reply to appellants' Point II. King v. Ruth, 136 Miss. 377, 101 So. 500; Masonite Corp. v. Steede, 198 Miss. 530, 23 So.2d 756.
III. In reply to appellants' Point III. Masonite Corp. v. Steede, supra; Ammons v. Wilson Co., 176 Miss. 645, 170 So. 227; St. Louis S.F. RR. Co. v. Rylee, 137 Miss. 759, 102 So. 838; Meridian Star v. Kay, 211 Miss. 536, 52 So.2d 35; Crystal Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658; State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; Hearsy v. City of New Orleans, 192 So. 148; Shreveport Laundries v. Red Iron Drilling Co. (La.), 192 So. 895; Sexton v. Lauman, 57 N.W.2d 200, 37 A.L.R. 2d 353; 25 C.J.S. 531.
IV. In reply to appellants' Point IV. Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; M. O. RR. Co. v. Johnson, 157 Miss. 266, 126 So. 827, 165 Miss. 397, 141 So. 581; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3.
V. In reply to appellants' Point V. Allen v. Lyles, 35 Miss. 512; Gurley v. State, 101 Miss. 190, 57 So. 565; Porter v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 101 Miss. 91, 57 So. 545; D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 145; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Tombigbee Electric Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567; Hulitt v. Jones, 220 Miss. 827, 72 So.2d 204; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737, 174 So. 550; Alabama V. Ry. Co. v. Phillips, 70 Miss. 14, 11 So. 602; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; Holmes v. State, 192 Miss. 54, 4 So.2d 540; Murphy v. State, 89 Miss. 827, 42 So. 877; Hampton v. State, 132 Miss. 154, 96 So. 165.
VI. In reply to appellants' Point VI. Laurel Equipment Co. v. Matthews, 218 Miss. 718, 67 So.2d 258; Hadad v. Lockeby, 176 Miss. 660, 169 So. 691; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; Illinois Cent. RR. Co. v. Dodds, 97 Miss. 865, 53 So. 409; Teche Lines v. Pope, 175 Miss. 393, 166 So. 539; Milner Hotel v. Brent, 207 Miss. 892, 43 So.2d 654; Yazoo M.V. RR. Co. v. May, 104 Miss. 422, 61 So. 449; 52 Am. Jur., Trespass, Sec. 57.
VII. In reply to appellants' Point VII. Montgomery Ward Co. v. Nickens, 203 Miss. 195, 33 So.2d 815; Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So.2d 64; Chicago St. L. N.O. RR. Co. v. Provine, 61 Miss. 288; Sec. 1499, Code 1942.
VIII. In reply to appellants' Point VIII. Calvert Fire Insurance Co. v. Swain, 217 Miss. 773, 65 So.2d 253; Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459; Sec. 1475.5, Code 1942; Sec. 4, Laws 1948.
IX. In reply to appellants' Point IX. Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 So. 26; Beam v. Birmingham Slag Co. (Ala.), 10 So.2d 162.
X. In reply to appellants' Point X. Dickens v. State, 208 Miss. 69, 43 So.2d 366.
XI. In reply to appellants' Point XI. Mississippi Power Co. v. Ballard, 170 Miss. 479, 153 So. 874; Anderson v. Gurrein Sky Way Amusement Co., 346 Pa. 80, 29 A.2d 684, 144 A.L.R. 1258; Holmes v. State, supra; Murphy v. State, supra; Bone v. State, 207 Miss. 868, 43 So.2d 571; Teche Lines v. Keller, 174 Miss. 527, 165 So. 303; Hale v. Hinkle, 159 Miss. 796, 132 So. 751; Trolio v. Nichols, 160 Miss. 611, 133 So. 207.
XII. In reply to appellants' Point XII. Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 643; Howell v. George, 201 Miss. 783, 30 So.2d 603; Wallace v. State, 203 Miss. 504, 35 So.2d 703.
Appellees sued appellant for damages grounded on an alleged nuisance in that appellant deposited in a concrete bin, which was located at the rear of appellant's grocery store and across the alley from appellees' rental property, large quantities of decaying vegetables, fish, meats, fruits and other debris; and that such garbage and debris was scattered by wind, dogs, and people, over appellees' property; that rats, bugs, roaches and other vermin bred in the garbage and invaded appellees' property; that noxious and offensive odors permeated the appellees' property; that the value of appellees' property was destroyed, and appellees were unable to rent their property because of conditions created by appellant. The suit was for damages for a six-year period ending in April, 1954. The jury returned a verdict for $10,000, and judgment was entered for that amount.
Appellees' property consisted of a lot and two dwelling houses thereon. The lot was 156 feet east and west by 50 feet north and south. The main building, containing three rental apartments, faced west on 7th Avenue. On the rear of the lot, facing an alley, was a small rental house, the front of which was 40.3 feet distant from the rear side of the appellant's store building and 20 feet from an alley running between the property of appellant and appellees. Appellees' property was bounded on the north by an alley 20 feet wide. Appellant's lot faced south and ran back to the alley that bounded the north line of appellees' property. The rear of appellant's store did not extend to the alley, but to the rear was left a loading space of about 30 feet; and on the west side of this parking and loading space, there was located a concrete trash bin along side the alley and directly in front of the rear house of appellees. This bin was 3.3 feet east and west, 18 feet north and south, and 3.5 feet deep. The airconditioning exhaust from appellant's store was located in a window facing west near the rear of the store. The exhaust duct was curved so as to blow the air therefrom at an angle to the southwest.
The proof on appellees' part, made out largely on the testimony of Mrs. Mulholland, was that for the six years in question, the bin to the rear of appellant's store was full and overflowing with all kinds of garbage, including oranges, lemons, grapefruit, boxes, paper, dead ducks and chickens, crabs, and that this garbage was scattered all over her lot; that she had cleaned up tons of fruit and great amounts of trash and garbage from her yard; that it had to be pushed off her front yard, which was some 155 feet to the west of the trash bin with two buildings between; that vegetables, cartons, sacks of fruit and bones were all over the street and yard; that fish ice was thrown out behind the store; rotten meat and fish caused offensive odors; the exhaust fan from the airconditioning caused the odors to be blown all the way to the front house; rats, roaches and flies were all over the houses and they came from the appellant's bin; the garbage and trash was hauled off every morning except holidays; that she could not rent the apartments and had lost $7,275 in rent; that in order to clean up the garbage and trash from her yard, she had hired a boy every other day for six years and paid him $4.00 for each cleaning, or the total sum of $4,680.00.
The proof on behalf of appellant was that all meat and fish scraps were kept inside the store in cold storage and sold each week for rendering purposes; that all fruits and vegetables that were unsalable were kept inside and loaded directly from the store to a farmer for hog feed; that all floor sweepings were kept in containers inside the store and loaded directly to the garbage collector; that the trash bin had a built-in drain, and nothing but paper and cardboard boxes and like trash was ever put in the bin; there were many dogs in the neighborhood, and garbage cans placed along the streets and alleys were turned over by dogs and people and the garbage scattered; that people pilfered and rummaged the trash bin from time to time; since the store was built, appellant had been under contract with an exterminating firm who regularly treated and inspected the premises, including the bin, and that rats, roaches, and other vermin had been kept under control at all times; that no noxious odors were present.
(Hn 1) Taking the testimony as a whole, there is no proof that the great quantities of vegetables, fruits and dead fowls came from appellant's premises, nor by what agency they were placed in such quantities on appellees' property. We are of the opinion that there was no proof that the rats, roaches, and other vermin in appellees' houses were the result of any nuisance maintained by appellant.
The most that the jury could have found as to the maintenance of a nuisance by appellant was that (1) there was offensive odors from the airconditioning exhaust and from fish ice left in crates or boxes at the rear of the store or in the trash bin, and from such fruits and vegetables as from time to time were in boxes or crates stacked at the rear of the store or placed in the trash bin; and (2) the trash bin was too small to hold all papers and boxes and cartons placed therein and piled thereon, and some of this was blown or scattered on the appellees' yard adjacent to the alley separating the properties, and obstructed the alley.
From what has been said, it follows that appellant was not entitled to a directed verdict.
(Hn 2) Appellant complains of this instruction granted appellees: "If you find for the plaintiffs, you should award plaintiffs damages for the depreciation of the rental value of the property, if any is shown by the evidence, as these are proper elements of damages when shown by preponderance of the evidence." This instruction was error. It does not limit the depreciation of rental value to acts for which the proof showed appellant responsible. It denies the jury the right to find that other causes might have contributed to the depreciated rental value of the property. The greater part of the proof of tons of trash and garbage Mrs. Mulholland testified was on her property was not shown to have been there by or through any fault of the appellant.
(Hn 3) Appellant contends that under the proof as to damages the most that appellees could recover would be nominal damages. We decline to hold that on remand of this case the appellees will be limited to recovery of nominal damages; although we could not uphold a substantial verdict under the proof as shown by the present record. Damages were claimed for depreciation in rental value and for expense in cleaning up the yard. The claimed loss of $7,275 in rentals was based solely on Mrs. Mulholland's testimony that the year before appellant built its store, she collected $2580 in rents from the property; that each year thereafter she collected less rent than $2580; that she did not have a record of which of the apartments were rented or when they were vacant; that she summed up the difference of what she did get and what she should have gotten, and that was her loss; that people would smell the odors and see the garbage and would either move out or fail to rent the property.
(Hn 4) The measure of damages in this case was the depreciation in the rental value of the property, plus any special damages proven. Southland Company v. Aaron, et ux, 72 So.2d 161. The trouble here is the kind of proof offered in support of damages. It may not be shown by proving what rent was collected before the nuisance and what rent was thereafter collected. (Hn 5) The proper way to prove depreciation in rental value, and probably the only way, although we do not so decide, is by the testimony of a qualified person as to the reasonable market rental value without the nuisance, and the reasonable market rental value after the creation of the nuisance; and since this suit covers a six-year period, it should be likewise proven for each separate year, because rental values may vary with the years.
(Hn 6) As to the item of damages of $4,680 alleged to have been spent for cleaning up the yard, the proof was insufficient for the jury to have determined whether the sum alleged to have been spent was reasonable. Neither the names of the persons employed, the rate of pay, nor the time spent in performing the work, was shown by the proof. The only proof offered as to this item was the total amount expended, arrived at by multiplying $4.00 by the number of times the yard was said to have been cleaned. If appellant is to be charged with this special item of damage, it should be shown that the expenditure was necessary as a result of appellant's wrong, which was not shown in this case, since it was not shown that appellant was responsible for a large part of the garbage allegedly on appellees' property, and the reasonable value of the services rendered. 25 C.J.S. 531.
(Hn 7) Appellant complains of the following two instructions granted appellees:
"The court instructs the jury for the plaintiff that where the testimony of an intelligent witness is undisputed, is reasonable in itself and is in reasonable harmony with the physical facts and the facts of common observation among experienced persons and the witness is unimpeached, then you must act on the testimony and cannot reject it."
"The court instructs the jury for the plaintiffs that evidence which is not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible or unreasonable, cannot be arbitrarily disregarded or rejected by you even though the witness is a party or interested and unless shown to be untrustworthy, is to be taken as conclusive or binding on the triers of the facts."
Both of these instructions were erroneously given. (Hn 8) They invade the province of the jury as being comments on the weight of the evidence. These instructions could hardly have been directed to the testimony of anyone except Mrs. Mulholland, one of the appellees, and her testimony to some extent, at least, was inherently unbelievable, improbable, and unreasonable; moreover, she was contradicted as to some of her testimony. We doubt if such instructions should ever be given, for wherever such a situation as therein stated exists, the jury should be peremptorily instructed as to the factual situation involved. Cf. Allen v. Lyles, 35 Miss. 512. The instructions are also bad for the reason that they are mandatory in character and practically amount to a peremptory charge.
Appellees contend that these instructions were not error, and that this Court has held in a number of cases, including Tombigbee Electric Power Association v. Gandy, 216 Miss. 444, 62 So.2d 567, that where the testimony of a witness is uncontradicted and he is not impeached in some manner known to the law, and is not contradicted by the physical facts and circumstances, it must be accepted as true. What was said in the Gandy case was a rule of law on the basis of which it was held that the appellant was entitled to a peremptory instruction; but it is equally clear that if the case had been one where an issue of fact should have been submitted to the jury, the court could not properly have embodied the stated rule in an instruction. The rule stated in the Gandy case is one by which testimony is to be measured as to its ultimate legal effect in the given situation; but it has no place in an instruction to the jury whose sole province it is to resolve the facts on issues presented to it for determination. Moreover, the instructions are faulty because they are pure abstractions not related to the case.
(Hn 9) Instruction No. 8 granted appellees was error in that it assumed as a fact that the appellant permitted offensive and noxious odors on and into the premises of appellees.
(Hn 10) Appellant offered proof that a broken sewer on appellees' property produced offensive odors. The lower court excluded this testimony on the theory that since the appellant's answer denied the charges that odors came from its property and did not affirmatively give notice in writing that the odors came from the broken sewer. We think the lower court erred. This was not affirmative matter in avoidance that is required by the new pleading act to be set up in written notice. Proof that a wrong was done by someone other than the person charged is proof that the person charged was not guilty of the wrong; and such proof is admissible under a denial without affirmative notice.
(Hn 11) Mr. Mulholland testified as to the value of appellees' property before and after the nuisance. Appellant requested and was refused an instruction to the effect that appellees were not entitled to recover anything for the alleged depreciation in the value of the property. This was error. There was no proof that the property of appellees' was permanently damaged. The measure of damages was the depreciation in the rental values, not the difference between the market value of the property before and after the creation of the nuisance. Southland Company v. Aaron, supra.
(Hn 12) Appellees' instruction No. 5 was erroneously given because it assumes that plaintiff's property has been subjected to noxious and disagreeable odors.
(Hn 13) Appellees' instruction No. 1 was erroneously given. It is confusing, and the jury may have been warranted in believing that the mere existence of the appellant's store at the place in question was actionable.
(Hn 14) Appellant contends that certain pictures should not have been admitted in evidence. There is no evidence that the dead fowls and a beer can, shown in the photographs, were on appellees' property by any act of the appellant. These pictures should not have been admitted. Only those pictures depicting conditions for which appellant is shown to be responsible should be admitted.
Reversed and remanded.
Hall, Lee, Kyle and Ethridge, JJ., concur.