Respondents brought this action jointly as owners of certain tracts of real property situated adjacent to appellant's sawmill. They alleged that appellant's dry kiln and burner had been negligently and carelessly equipped with a semi-spherical top-screen from January 1, 1961, to the date of this action (November 20, 1963), thereby emitting burning debris, soot, smoke, and partly-burned sawdust which was carried onto their land by prevailing winds. They also alleged that this debris constantly seeped into their residences and covered their porches, lawns and truck gardens, spoiling all leafy vegetables growing therein and causing plaintiffs substantial and continued annoyance, harassment and extra cleaning work. Furthermore, they complained that these burning embers have caused them continued and justifiable apprehension and fear that a fire would ensue as a result.
Respondents Archers alleged separately that appellant's employees were forced to trespass onto their property to relieve themselves because appellant had failed to supply adequate sanitary facilities, thereby contaminating a certain spring or small well located upon their property, such well being the only source of Archers' domestic water supply. They further alleged this practice was known, or should have been known with the exercise of reasonable diligence, to appellant, and proximately caused them damages estimated at $10,000.
Respondents Archers and Flottmans further complained that a fence maintained between their boundary lines was broken numerous times as a result of appellant's employees negligently stacking logs too close to that fence. Repairs to this fence over the period herein were alleged in the sum of $250 to each party, but Archers abandoned this cause during the trial.
Respondents jointly alleged that, as a proximate cause of appellant's acts, their several parcels have each depreciated $10,000 in value; and that they have experienced substantial and uninterrupted annoyance, mental suffering, and inconvenience to their respective detriment in the sum of $5,000.
The jury returned a verdict in favor of respondents as follows:
(1) For Archers the sum of $1,000
(2) For Flottmans the sum of $500
(3) For Erickson and Hutchins jointly the sum of $250
Appellant's motion for a judgment notwithstanding the verdict under Rule 50(b)
Appellant assigns eighteen specifications of error but they may be discussed in five groups, i. e., (1) the premature giving of instructions to the jury prior to the introduction of any evidence at the trial; (2) instructions on the issue of nuisance, when nuisance had not been properly pleaded in the complaint; (3) instructions and evidence concerning the measure of damages to which respondents were entitled; (4) court's refusal to give some requested instructions of appellant because not submitted five days prior to trial in accordance with a local rule of that judicial district, though some other instructions requested by appellant at the same time were, in fact, given; and (5) failure of the trial judge to submit instructions to counsel prior to giving the same to the jury as provided in Rule 51 I.R.C.P.
In addition to that portion of the complaint in which the Archers allege they were damaged by the contamination of their water supply through deposits of urine and human feces by employees of the appellant company which had neglected to furnish proper sanitary facilities at the mill for such employees, the pertinent part of respondents' allegations are as follows:
After alleging that such acts by appellant caused the real estate of each set of respondents to depreciate in value in the amount of $10,000 each, the respondents further allege:
It will be noted appellant urges no error by the trial judge in giving the other instructions prior to the introduction of the evidence; it is assumed, therefore, these were merely general in nature — the so-called "stock instructions" which must be given to every jury in a civil action.
Immediately upon the completion of the reading of such instructions to the jury, attorney for appellant (after the jury had been excused) moved the court to direct the jury to disregard the instructions or to grant a mistrial primarily because (1) an entirely new issue, that of nuisance, had been interjected into the action to the surprise of appellant, and (2) the court had erroneously instructed the jury concerning the damages allowable to respondents in several particulars. These motions were denied by the trial court. Counsel for appellant protected the record throughout the trial by timely objecting to the admission of any evidence concerning the operation of a nuisance by appellant company.
Concerning appellant's contention that the trial court prematurely gave instructions to the jury, the regular order of trial in a civil action is set forth in I.C. § 10-206, which provides in effect that the instructions should ordinarily be read to the jury by the court when the evidence is concluded and before the case is argued to the jury; however it is specifically provided in the preamble of this section that "* * * the trial must proceed in the following order unless the judge for special reasons otherwise directs: * * *." (emphasis supplied) Thus it is discretionary with the trial judge when he shall read the written instructions to the jury. Schmidt v. Williams, 34 Idaho 723, 203 P. 1075; Byington v. Horton, 61 Idaho 389, 102 P.2d 652. There is nothing in the provisions of Rule 51 I.R.C.P. depriving the trial judge of this statutory discretion.
It has become the custom of some of the trial judges in the State of Idaho to give what is commonly referred to as the "stock instructions" at the very beginning of a trial after a jury has been selected and prior to the introduction of any evidence for the purpose of better acquainting the members of the jury with the exact issues involved in the cause to be heard by them as set forth in the pleadings and the pre-trial order if any has been entered. At the same time the jury is advised concerning the burden of proof of these various issues and terms such as "preponderance of the evidence," "negligence," "proximate cause," "contributory negligence," "assumption
The next group of specifications of error concerns the court's giving of instructions on the issue of nuisance thus, as contended by appellant, raising an issue which had not been properly pleaded in the complaint. A "nuisance" is statutorily defined in Idaho as "[a]nything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, * * *." I.C. § 52-101. Another Idaho statute, I.C. § 52-111, provides as follows:
Although the word "nuisance" is not specifically mentioned in respondents' complaint, under the provisions of Rule 8(a) I.R.C.P. a pleading which sets forth a claim for relief (respondents' complaint) need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," in addition to alleging jurisdiction of the court and a demand for judgment to which the pleader claims he is entitled. Additionally Rule 8(f) I.R.C.P. provides that "[a]ll pleadings shall be so construed as to do substantial justice." As stated in Moore's Federal Practice, Second Edition, Vol. 2A, par. 8.02, p. 1611, after citing the Federal Rule which is identical to Rule 8(f) I.R.C.P. as quoted above:
Thus pleading under the new rules (I.R. C.P.) is intended to be simpler and more flexible than the code pleading under I.C. § 5-605; but even under the requirements of that statute, all the pleader was required to allege in the complaint was "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (emphasis supplied) This court in construing that statute (I.C. § 5-605) often held that the technicalities of pleadings had been dispensed with and that the plaintiff need only state his cause of action in ordinary and concise language without regard to the ancient forms of pleadings and that every reasonable intendment would be made to sustain a pleading. Stone v. Bradshaw, 64 Idaho 152, 128 P.2d 844, and the cases cited therein; Curtis v. Siebrand Bros. Circus and Carnival Co., 68 Idaho 285, 194 P.2d 281. As early as 1910 this court held that "the sufficiency of the pleading must be determined upon the facts pleaded, rather than upon any name given to the pleading or the cause of action." Bates v. Capital State Bank, 18 Idaho 429, at 434, 110 P. 277, 278.
Either under the new rules or under the code pleading it is difficult to perceive how the plaintiffs Archers could have more plainly alleged facts constituting a nuisance when they alleged the depositing of urine and human feces by employees of the appellant company through the neglect of the company to furnish proper sanitary facilities at the mill, this practice having persisted for one full season, from April until December, in 1961, and from April to July in 1962, all of which was known or should have been known to the company, and that such deposits had resulted in the contamination of their domestic water supply. Moreover, in alleging the facts that the debris from the defendant's burner had constantly seeped into their residence, covered their porches, lawns and truck gardens, causing respondents substantial and continued annoyance, vexation, harassment and extra cleaning work, and further alleging that the acts of the appellant company caused respondents to experience substantial continued and uninterrupted annoyance, mental suffering and inconvenience, respondents alleged sufficient facts to place the appellant company on notice that they were demanding relief for a nuisance maintained by the appellant. Therefore, there is no merit to appellant's contention that it was surprised when the trial court instructed the jury at the beginning of the trial that nuisance was an issue in the cause before them.
We now address ourselves to the third group of appellant's specifications of error, i. e., the giving of instructions and the admission of evidence concerning the measure of damages. These fall into two categories, (1) proper measure of damages for temporary injury to real property, and (2) permitting shock, nervousness, mental pain and suffering, and "injury to health" to be considered as elements of damages where there is no evidence of any actual physical injury. Appellant contends that the proper measure of damages for temporary injury to real property is the amount necessary to repair the injury and restore the realty to its former condition, with interest from date of injury, citing Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L.R.A.,N.S., 968; Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 295; and Casey v. Nampa and Meridian Irrigation District, 85 Idaho 299, 379 P.2d 409. However, appellant admits there is a split in the authorities on this question and that some jurisdictions hold that diminution in the rental or usable value of the property is deemed to be the proper measure of damages for temporary injuries to real property. The trial court permitted the owners of the properties involved (respondents herein) to testify as to how much the usable value of the property had been decreased through the acts of appellant in depositing debris, etc., from the burner
the element of damages erroneously included in the instruction objected to in that case.
Thus because of the verdict rendered by the jury the errors in instructions and admissibility of evidence claimed by the appellant are deemed non-prejudicial and non-reversible.
According to the court's notation on the bottom thereof, appellant submitted thirteen requested instructions a few hours before the close of the trial, and with the exception of three of them the court refused such instructions, on two grounds: (1) that they were not submitted according to the local judicial district's rule that instructions should be submitted to the court not less than five days prior to trial; and (2) that they were otherwise covered in the instructions given. Appellant contends this is reversible error, but there is no merit to this contention for two reasons. First, under Rule 51 I.R.C.P. it is provided that:
There is nothing unreasonable in the requirement that counsel file with the court at least five days prior to trial the instructions which he intends to present to the court on the issues which he can reasonably foresee being involved in the trial. Such instructions are invaluable to the trial judge in his preparation for presiding over a jury trial, especially since the pleading rules have been so liberalized under the Idaho Rules of Civil Procedure; for in many instances without the aid of the proposed jury instructions a court may be almost totally uninformed of the actual issues involved. This is particularly true in instances where no pre-trial conference has been held and there is no showing of record in the cause at hand of any pre-trial conference. Of course this rule should not be enforced as to issues which appear during the course of the trial, but were not reasonably foreseeable prior to the trial. On such issues counsel should be permitted to file requested instructions at any time after the issue appears and before the instructions are given to the jury by the court.
Secondly, as indicated by the court, all the matters and things contained in defendant's requested instructions which were not, in fact, given were substantially covered in the instructions which were given by the court to the jury at the close of the case and just prior to arguments of counsel.
Finally, appellant contends it was reversible error on the part of the trial court in failing to comply with that portion of Rule 51 I.R.C.P. which provides: "The court * * * shall submit to the parties the instructions that will be given, and provide opportunity to make objections." The record fails to disclose either compliance or noncompliance with this rule, but assuming for the purpose of this portion of the opinion that there was noncompliance, it cannot be deemed of sufficient prejudicial error to warrant a reversal of the verdict and judgment. It will be noted that Rule 51 also provides that: "The failure to object to any instruction given by the court shall not preclude any party to the action from assigning as error on appeal any erroneous instruction given or any omission by the court to give a proper instruction." Thus the rights of the parties are adequately protected on appeal whether or not the instructions are submitted to counsel in advance and, if submitted, no objection thereto is taken.
Under the Federal Rules of Civil Procedure arguments of counsel are given prior to the court's instructions to the jury. Under the Federal Rule 51, it is provided that: "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury * * *" and obviously it is important to counsel to know what is contained in the court's instructions before arguing to the jury. However, even under this rule, it is not meant to be a trap for the judge nor an indispensable ritual for all cases, and the inadvertent failure of the judge to give this information
Full disposition of appellant's appeal requires discussion of appellant's "specifications of error" in his motion for a judgment notwithstanding the verdict or in the alternative for a new trial, from a denial of which motions appeal was regularly taken. As a ground for such motions, among other things, appellant contended that the evidence is insufficient, both as to the liability, and as to damages, to justify the verdict. Without detailing the evidence adduced at the trial on these questions of fact, suffice it to say that although the evidence was conflicting in many respects there was substantial competent evidence from which the jury could have found liability on the part of the appellant company for damages in the rather nominal amounts awarded to each of the respondents. Such verdict and the judgment entered thereon will not be set aside by this court on appeal. National Produce Distributors, Inc. v. Grube, 78 Idaho 33, 297 P.2d 284. Also it appears a rule of long standing in this jurisdiction that the trial courts possess a discretion to be exercised wisely in granting or refusing new trial, and at least in instances where the motion for a new trial has been denied such discretion will not be disturbed by the appellate court unless it clearly appears to have been exercised unwisely and to have been manifestly abused. Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430, and cases cited therein; National Produce Distributors, Inc. v. Grube, supra; Grimm v. Harper, 84 Idaho 220, 370 P.2d 197; Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Warren v. Eshelman, 88 Idaho 496, 401 P.2d 539 (1965). No such abuse of discretion appears from the record in this issue. Additionally, the general rule which prevails in this jurisdiction is that a motion for a new trial should not be granted unless it appears that a different result would follow a retrial. Blaine v. Byers, supra; Consumers Credit Co. v. Manifold, 65 Idaho 238, 142 P.2d 150, and cases cited therein.
The trial court, therefore, committed no error in denying appellant's motion for a judgment notwithstanding the verdict and his motion for a new trial. Judgment affirmed. Costs to respondents.
TAYLOR, C. J., SMITH and McQUADE, JJ., and NORRIS, District Judge, concur.