dissenting: I am not in harmony with the majority opinion in this case, and, therefore, I feel called upon to dissent from said opinion.
In the majority opinion much time is given to the question of whether the verdicts are warranted by the evidence. To me that question is not now of importance. All such questions were submitted to the jury on enough evidence, it seems to me, to warrant the case going to the jury, and, therefore, those questions are decided and leave nothing but the one question as to whether the plaintiffs in these cases had a legal cause of action. We are all agreed that there is no reversible error in the record unless the court erred in not directing a verdict for the defendants.
The record discloses that the village of Hartford where the plaintiffs live and where the tannery and settling basin of the defendant is situated is an industrial village of approximately 1,600 people, located along the east bank of the Mississippi river. Plaintiffs were homeowners, living in the northeast outskirts of the village and in varying short distances from the sewage pond or settling basin complained of, which is several thousand feet from the tannery proper. Plaintiffs live between the basin and the tannery. The plant of defendant is used to process green hides into leather.
The settling basin is uncovered, and is 275 feet wide, 1,200 feet long and 5 feet deep. It was constructed in 1938, and into it is piped tannery waste and human waste. The complaint of plaintiffs was not directed at the operation of the tannery itself, but the settling basin, from which it was alleged that these unpleasant odors arose, whereby it is urged, on the part of plaintiffs, that a nuisance was created, interfering with the wholesome, healthful and ordinary enjoyment by plaintiffs of their property.
It is relied upon as error for the reversal of these judgments, that plaintiffs failed to plead or prove any cause of action at law, which would entitle them to a judgment fpr damages against defendant, and it is contended on behalf of defendant that because the evidence did not show any damage from the odor to the health of plaintiffs, and because of the fact that no smoke, soot, hides, hair or any substance of any kind was cast upon plaintiffs’ premises, no action for damages can lie. It is also strenuously urged in that regard that private actions at law may not be maintained by a citizen against a person or corporation for the maintenance of a public nuisance unless 'hé has shown personal damage peculiar to himself which is different from that suffered by the general public.
To live comfortably is the chief and most reasonable object of men acquiring property and establishing homes for themselves and families and any interference in that comfortable enjoyment of life is a wrong which the law will redress. Wahle v. Reinbach, 76 Ill. 322; Seacord v. People, 22 Ill. App. 279; Iliff v. School Directors, 45 Ill. App. 419; Cook v. City of Du Quoin, 256 Ill. App. 452; Wineland ex rel. Abeln v. M. Huber, Inc., 275 Ill. App. 264; Feder v. Perry Coal Co., 279 Ill. App. 314; Eckart v. City of Belleville, 294 Ill. App. 144; Menolascino .v. Superior Felt & Bedding Co., 313 Ill. App. 557. Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance and any business, however lawful which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence is a nuisance. Wahle v. Reinbach, supra; Seacord v. People, supra; Cooper v. Randall, 53 Ill. 24. The creation of stenches and noisome odors has been recognized always as a nuisance. 46 C. J. 687. Following the rule laid down in the above cited cases, it was not necessary, in order for there to be a cause of action in favor of plaintiff, that there be an injury to health on their part, or that smoke, soot, hides, hair or any other substance be cast upon their premises. In the case of Wahle v. Beinbach, supra, the court adopting the language of a New Jersey case, Cleveland v. Citizens Gaslight Co., 5 C. E. Greene (20 N. J. Eq. 201) page 205, said, “Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance, that should be restrained; and smoke, noise and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated, make life uncomfortable.”
Plaintiffs herein had the natural right to have the air diffused over their premises reasonably free from noxious odors and other impurities, so as not to materially interfere with plaintiffs’ use and enjoyment of their homes. Cooper v. Randall, supra; Chicago-Virden Coal Co. v. Wilson, 67 Ill. App. 443; Matthiessen & Hegeler Zinc Co. v. Ferris, 72 Ill. App. 684; Feder v. Perry Coal Co., 279 Ill. App. 314.
The well considered opinion in the case of Wylie v. Elwood, 134 Ill. 281, seems to me to be conclusive on the question raised by defendant, as to the right of a citizen to maintain an action for damages resulting from a public nuisance, unless he shows personal damages peculiar to himself, which is different from that suffered by the general public. In that case, plaintiff, who was injured in the enjoyment of his home by the noise and dust growing out of the erection and maintenance of a large coal shed by defendant, was allowed a recovery. There the 4efendant, as here, contended that since the nuisance affected the public, plaintiff should not be permitted to maintain- his action. The court, as to that proposition of law at page 287, said, “The doctrine, that Special damage must be shown in order to justify a private action for injury growing out of a public nuisance, had its origin in the consideration of nuisances grooving out of obstructions to highways and navigable streams. For instance, if a man dug a ditch across a public highway, the traveler would have no action for the inconvenience which he suffered from the interruption in common with the rest of the public, but, if his horse fell into the ditch and was killed, he would thereby suffer a special damage not common to others. ■
“The strictness of the original rule has been greatly modified since the days of Lord Coke. Recovery may be had for damages which are consequential as well as direct (Wood’s Law of Nuisances, Sec. 620 and 621). An individual who receives actual damage from a nuisance,- may maintain a private., skit for his own injury, although there may be many others in the same situ-, ation (Lansing v. Smith, 4 Wend. 10). The doctrine now is, that a nuisance may be at the same time both public and private. The use-of a steam engine in a crowded street may be a public nuisance, but, in a case where the smoke from it also injured the goods in a man’s shop and made his dwelling uncomfortable, it was held to be such a private nuisance as would give him a right of action (Idem. Sec. 649). In Francis v. Schoellkopf, 53 N. Y. 152, it was held that, although the stench -from a tannery injured a large number of houses, yet the plaintiff * whose dwelling was made uncomfortable and almost uninhabitable, was entitled to sue for her particular injury.”
In the case at bar, if the homes of the- plaintiffs were rendered uncomfortable and urilivable by the noxious odors emitted from the settling basin of defendant, they suffered a special damage, even though the homes of their neighbors were rendered uncomfortable in varying degrees from the same cause. As was said in the case of Francis v. Schoellkopf, 53 N. Y. 152, where plaintiff sued for damages sustained from the stench of á tannery and a large number of other houses were rendered almost uninhabitable, “it is no defense for a wrong doer when called upon to compensate for damages sustained by his wrongful act to show that he, by the same act, inflicted a like injury upon numerous other persons.”
And here now, may be disposed of, the claim of defendant that odors from other industries may have contributed to the discomfort and damage of plaintiffs. Where the acts of several persons, although separate arid distinct as to time and place, culminate in producing .a public nuisance, which' injures the person or property of another, they .are jointly and severally liable. Fox v. City of Joliet, 150 Ill. App. 491; Cook v. City of Du Quoin, 256 Ill. App. 452. I am of the opinion that on the pleading and proof, plaintiffs established, prima facie, a legal cause of action. ■
It is contended by defendant that plaintiffs failed to prove that any discomforts which were suffered by plaintiff were the result of any unnecessary and unreasonable conduct on the part of defendant in the operation of its tannery and settling basin. Proceeding upon this theory, defendant offered to prove that the tannery was operated in accordance with the recognized method of the operation of a tannery and that such operation was consistent with the generally accepted method, to which objection was made, and objection sustained by the court. It has been held many times by our courts when damage is predicated upon nuisance and where no punitive damages are sought, the question of negligence is not involved. Randall v. Cooper, supra; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322; Menolascino v. Superior Felt & Bedding Co., supra; Feder v. Perry Coal Co., supra. The trial court did not err in the rejection of this testimony, as the question of the- unnecessary and unreasonable conduct on the part of defendant was not an issue.
Defendant further offered in evidence testimony tending to show that there were other industries in and about East St. Louis, and between Hartford and East St. Louis, which gave off odors, and that these odors had a greater intensity and were less pleasant than odors in and about Hartford, and that the witness had observed that there were many people who had their houses there where such conditions prevailed. It was further offered to prove that the largest sole-leather tannery in the United States was located at Elkland, Pennsylvania, and that there were settling basins there and that the odor there was as bad or worse than it was at Hartford, and that many residences were located there. This preferred evidence was clearly improper, irrelevant, and immaterial and only calculated to create a secondary and false issue, not involved in the trial of the cause, and the court did not err in refusing these witnesses to testify.
It is urged on behalf of défendant that the court erred in failing to direct the jury to return a verdict for defendant as to eaéh couht in the complaint; that the verdicts are against the manifest weight of the evidence and that the court erred in denying defendant’s motion for a new trial. Eighteen witnesses, including plaintiffs, testified on behalf of plaintiffs. The substance of their testimony was to the effect that shortly after the establishment of the settling basin, foul odors began to emanate therefrom, that such odors continued from that time, until the filing of the suit and were always present at all times, of the day and night. This odor was variously described as being like, “fertilizer scraps,” “decomposed animal, only worse,” “foul and vile, like decomposed flesh,” “something dead and decayed,” “dead animal or packed fresh hides,” “worse than rotten eggs and decayed flesh.”
In the summer when the windows were up, it was worse than in the winter. It would awaken one from sleep, spoil appetites, and cause vomiting. Some witnesses described a burning sensation in their throats, and nausea when the stench was at its worst. It would be necessary to turn electric fans on to drive the smell from their homes. Freshly washed clothes would smell of it.
Twenty-four witnesses testified on behalf of defendant, the most of whom testified to the effect that there were other odors, other than those from the settling basin, prevalent in that community; that whether the odors from the settling basin were noticeable depended upon the wind directioh and were worse when the humidity .was high, and that the odor was somewhat similar to that of the tannery proper. The most of them testified that they and their families had not been rendered uncomfortable by the odors. Milton E. Kronenberg, called on behalf of defendant testified that he was Chief of the Division of Industrial Hygiene of the Illinois State Department of Public Health, and a physician and surgeon, that under his supervision a study of the atmospheric conditions of Hartford and in the vicinity of the settling basin was conducted. He found, so he stated, that the odors from the basin were characteristic tannery odors, that were was nothing of a suffocating nature in the air, nothing to wake them up, .or disturb their sleep; nothing that could or might objectively cause nausea. He further testified that tests were conducted by means of an instrument, and that his observations were not based upon his reactions from his nose but from the instrument used. To offset this more or less negative testimony, many witnesses testified positively that they were awakened by the smell, that it disturbed their sleep, and that they were nauseated, and had a feeling of suffocation. •
It was the province of. the jury, as the triers of fact to determine whether these odors complained of were attributable to the operation of the settling basin and whether they caused the damage complained of. 46 C. J. 813. They saw and heard the witnesses testify, and could weigh their credibility, their powers and opportunity for observing the matters about which they testified, and their interest, if any, in the result of the suit. Where a fair question of fact is raised by the proof, a court of review will not set aside the jury’s finding as being against the manifest weight of the evidence. Armster v. American Steel Foundries, 313 Ill. App. 378, at 385; Summers v. Hendricks, 300 Ill. App. 498; Jones v. Esenberg, 229 Ill. App. 551; Gregory v. Merriam, 294 Ill. App. 483.
While it is the general rule that defendant has a right to use its property as it sees fit, still, if in doing so, regardless of whether1 it is negligent or not, or whether its factory is properly operated, it creates and maintains a nuisance and thereby deprives neighbors of the use and enjoyment of their homes and injures their health, it is liable. Menolascino v. Superior Felt & Bedding Co., 313 Ill. App. 557, 40 N. E. (2d) 813; Francis v. Schoellkopf, 53 N. Y. 152.
In McFarlane v. City of Niagara Falls, 247 N. Y. 340, Justice Cardozo, in expounding the theory of nuisance, said, “Nuisance as a concept of law, has- more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. .. . . One acts sometimes at one’s peril. In such circumstances the duty to desist is absolute whenever conduct, if persisted in, brings damage to another .... Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions .... He is not to do such things at all, whether he is negligent or careful. ’ ’
Also if a person keeps his hogs or other- noisome animals, so near the house of another that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. 3 Blackstone 216.
Defendant, in the case of Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18, was engaged in the manufacture of gas and plaintiff owned the adjoining property. There the trial court instructed the jury that, to constitute a nuisance, it was essential that the smells and odors from defendant’s works should be sufficient, “to contaminate and-pollute the air, and substantially interfere with the plaintiff’s enjoyment of her property,” and that the question for them to determine was, “Did the odor pollute the air so as to substantially render plaintiff’s property unfit for comfortable enjoyment,” to which the defendant excepted. There the court said: ‘‘ The rule stated by the learned judge was in accordance with all the authorities. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling; it is enough that the enjoyment of life and property be rendered uncomfortable. . . .
“It may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of such a character.”
. I am very strongly of the opinion that the trial court did not err in refusing to direct a verdict and that the judgment should be affirmed.
If the majority opinion is correct, then there is such a thing as a wrong without a remedy.