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District Court of Appeal, Fourth District, California.

Charles KORNOFF and Eleanor Kornoff, Husband and Wife, Plaintiffs and Respondents, v. KINGSBURG COTTON OIL COMPANY, a corporation, Defendant and Appellant.

Civ. 4943.

Decided: May 25, 1955

David S. Davis and Charles Ray Barrett, Fresno, for appellant. L. Kenneth Say, N. Lindsay South and James C Janjigian, Fresno, for respondents.

Defendant corporation owns and operates a cotton gin situated on real property at the northeast corner of Belmont and Norton Avenues in Fresno county. This gin was constructed and put in operation by the defendant in September, 1951. Plaintiffs reside on contiguous real property fronting on Madera Avenue, which runs north and south, and their residence is approximately 130 feet from said gin. Plaintiffs also have a planing mill adjoining their residence and said mill is approximately 120 feet from said gin. Plaintiffs' mill and residence were constructed in 1948 and plaintiffs have resided on the property since that year.

On September 4, 1953, plaintiffs filed their first amended complaint herein in which it is alleged, among other things, that in the course of ginning operations conducted by defendants on their property large quantities of fumes, vapors, dust, dirt, sediment, lint and waste materials were emitted into the atmosphere, penetrating into the house and dwelling of plaintiffs and into their shop, covering the same with an offensive, injurious and adhesive coating of dust, lint and ginning waste; that by reason thereof the health of plaintiffs and their family has been impaired, and the house and furniture damaged; that their property had been damaged in the sum of $20,000; and that they had suffered damages to their persons in the sum of $5,000.

A jury trial resulted in the following verdict:

‘We, the jury in the above entitled action, find for the plaintiffs, Charles Kornoff and Eleanor Kornoff, and against the defendant, Kingsburg Cotton Oil Company, a corporation, and assess the damages to their real property in the sum of $10,000.00.

‘But, find that the plaintiff, Charles Kornoff suffered no damage to his person; and

‘That plaintiff, Eleanor Kornoff suffered no damage to her person.’

Following the entry of judgment on this verdict defendant filed a motion for a new trial upon all the grounds specified in section 657 of the Code of Civil Procedure. The trial court granted this motion ‘Upon the grounds that the evidence is insufficient to justify the verdict as to the issue of damages only’ and granted the defendant a new trial ‘In respect to the issue of the amount of the damages assessed, and the verdict of the jury is hereby set aside and held for naught in that respect only.’ It was further ordered that defendant's motion for a new trial upon the other grounds alleged in the motion be denied. No appeal was taken from the order granting the limited new trial and the cause was again tried. At the conclusion of the second trial the jury returned the following verdict:

‘We, the Jury in the above entitled action, assess plaintiffs' damages in the sum of $9541.00; and our verdict is for the plaintiffs, Charles Kornoff and Eleanor Kornoff, husband and wife, and against the defendant, Kingsburg Cotton Oil Company, a corporation, for said amount.’

Judgment was entered in accordance with this verdict. Defendant again moved for a new trial. This motion was denied and defendant appeals from the verdict and the judgment thereupon entered for plaintiffs.

It is stated in appellant's opening brief that the pivotal question on this appeal is ‘What is the proper measure of damages recoverable by plaintiffs in this action as damages to their real property?’ In this connection the court instructed the jury as follows:

‘If, under the Court's instructions, you should find that plaintiffs are entitled to a verdict for a sum greater than merely nominal damages, then you shall determine the items of claimed detriment which I am now about to mention, provided you find each of such items to have been suffered by plaintiffs, and provided further that you find each of such items to have been suffered by plaintiffs as the proximate result of the act or acts of trespass complained of:

‘1. Such sum as will reasonably compensate the said plaintiffs for the damage to their real property. That sum is equal to the difference in the fair market value of the real property immediately before and after the injury; provided, however, that if the injury has been repaired, or be capable of repair, so as to restore the fair market value of plaintiffs' real property as it existed immediately before the injury, at an expense less than such difference in value, then the measure of damage is the expense of such repair, rather than such difference in value.

‘2. Such sum as will reasonably compensate plaintiffs as the owner-occupants of the land, including members of their household, for discomfort and annoyance to them, if any, proximately caused by the act or acts of trespass complained of. The amount of damages to be awarded for this element of the injury, if any, is left to the sound judgment and discretion of the jury based upon the evidence, and without the necessity of any witness having given his opinion with respect to the amount of such damages, if any.’

Appellant argues that it was error to admit evidence of plaintiffs' ‘discomfort and annoyance’ and in instructing the jury in that regard.

In Alonso v. Hills, 95 Cal.App.2d 778, 787–788, 214 P.2d 50, 57, in an action for damages resulting from blasting operations and for injunctive relief brought by an owner and occupant of land and a dwelling house against the owners and operators of a quarry, the court held that:

‘The recovery for such invasion of his rights in the real property to which the owner-occupant is entitled includes discomfort and annoyance. Restatement, Torts, § 929(c); Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 172, 106 P. 581, 21 Ann.Cas. 1247, 26 L.R.A.,N.S., 183; Dauberman v. Grant, 198 Cal. 586, 590, 246 P. 319, 48 A.L.R. 1244; Green v. General Petroleum Corp., 205 Cal. 328, 337, 270 P. 952, 60 A.L.R. 475. Commenting on § 929(c) of the Restatement, supra, reads in part: ‘'Discomfort and other bodily and mental harms. Discomfort and annoyance to an occupant of the land and to the members of his household are distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interest.’ The same rule with respect to nuisances, under the definition of which blasting as here involved comes, § 3479, Civ.Code, is found in 39 Am.Jur. 398; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739; United States Smelting Co. v. Sisam, 191 F. 293, 301, 112 C.C.A. 37, 37 L.R.A.,N.S., 976.'

The instruction was a correct statement of the law applicable in that case. However, there had not been a previous trial and verdict of a jury, as in the instant case, in which the jury found that the plaintiffs suffered no damages to their persons.

In Karallis v. Shenas, 97 Cal.App.2d 280, 283, 217 P.2d 436, this court held that where there are several issues of fact which are distinct and separable, the court is authorized to grant a new trial as to one issue only, and deny the motion as to all other issues and when such a new trial is granted it opens for examination all the facts and circumstances relative to that one issue and as to other issues there shall be no retrial or examination of the facts. (Citing cases.)

Since in granting the new trial the court specifically limited it ‘to the issue of the amount of damages assessed’ and did not disturb the finding that plaintiffs had suffered no damage to their persons, it was improper to instruct the jury that it could assess damages for ‘discomfort and annoyance’. In the second verdict the jury did not specify what amount was awarded for damages to property and made no segregation of the items of damage. We are unable to determine from the record whether damages were included therein for ‘discomfort and annoyance’ in the total amount assessed. Evidence was admitted, over objection of counsel, as to the discomfort and annoyance of plaintiffs and the jury may have included damages for these items in their verdict in accordance with the court's instruction. We conclude that the questioned instruction was prejudicially erroneous under the circumstances shown by the record and that the judgment should, therefore, be reversed.

In view of our conclusions it is unnecessary to pass upon the other points raised upon this appeal.

The judgment is reversed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.