Byron Franks v. Lancaster Iron Works.

fered any special injury, or that the alleged noises or sounds are made under circumstances which would entitle the plaintiff to relief at law. It is also urged that he does not allege that the defendant' business is carried on in an unlawful manner, or that the alleged noises and sounds are unlawful or unlawfully made.

While the plaintiff asserts that he was in possession of the aboverecited premises under a lease dated April 1, 1919, he does not state how long he has resided there. The suit was begun on August 21, 1919; so that, at best, a little over four months had elapsed when it was instituted, and he could not have occupied the premises more than that length of time. He does not state whether or not the defendants' plant was carried on by them when he leased and moved into this house; so that it must be presumed that, when he moved there, the plant was not only so situated, but that it was conducted in the same manner as it was conducted when the suit was brought. The time of its operation was certainly not unusual, for all manufacturing plants are run from about seven a. m. to five p. m. The additional allegation that it was frequently carried on with a smaller force after seven p. m., adds little to the complaint, as no fixed time is mentioned, and it is not claimed that the sleep of himself and his family was disturbed by its operation.

It will be observed that he asserts that a majority of his neighbors, in common with himself, suffered from this cause, and then he adds that "the injuries to himself and family are separate and distinct from that in common." The inconsistency of the proposition is manifest, and it was evidently inserted in a general way, with the hope that it might bring him within the doctrine set forth in a line of cases under which a recovery is allowed for the maintenance of a nuisance. He does not make it clear how far distant he resides from the defendants' works; but he admits that there is a large open lot between, and the real burden of the complaint is, that there are not between them proper walls to ward off sound waves." It would almost seem to follow that the injury complained of was one common to those living in the vicinity of the plant, and not one peculiar to himself. The building of additions cannot be considered, for every one has a right to build on his own land.

To establish a nuisance it is not necessary that the plaintiff should prove that the business was carried on by the defendant recklessly, or was not properly managed. It is sufficient to show that the defendant selfishly carried on a lawful business in a populous neighborhood greatly to plaintiff's injury. Gavigan v. Atlantic Refining Co., 186 Pa. 604. It is not contended here, however, that the plaintiff is the owner of any real estate that is damaged by the operation of the defendants' business. Of course, he and his family, as tenants, may have suffered inconvenience and discomfort from the noise of the manufactory, but that must have been the extent of the injury. There is a great difference "between those acts which produce material injury to property and those which are productive of sensible personal discomfort only. In cases involving the latter-personal inconvenience and interference

Byron Franks v. Lancaster Iron Works.

with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or affects the senses or nerves the right to relief must depend largely upon the circumstances of the place where the thing complained of occurs. It is reasonable and necessary that persons living in a community and neighborhood should subject their personal discomforts to the consequences of those operations, trades and businesses that are carried on in the immediate locality and are actually necessary for trade and commerce, for the enjoyment of property and for the benefit of the inhabitants and of the public at large.' Evans v. Reading Chemical Fertilizing Co., Ltd., 160 Pa. 209.

"Noises which disturb sleep, bodily rest, a physical necessity, noxious gases, sickening smells, corrupted waters, and the like, usually affect the mass of the community in one and the same way, and may be testified to by all possessed of their natural senses, and can be judged of by their probable effect on health and comfort, and in this way damages may be perceived and estimated. Not so of that which only affects thought or meditation. What would disturb one in his reflections might not affect another. There can be no general rule or experience as to this. It is incapable of being judged of, like those things which affect heatlh or comfort." Sparhawk v. Union Passenger Railway Co., 54 Pa. 401.

In Owen v. Henman, 1 W. & S. 548, an action on the case was brought for the disturbance of a member of a religious congregation, while engaged in religious exercises in the church, by making loud noises in singing, reading and talking, it was held that no action could be maintained by the plaintiff. Mr. Justice Sergeant, in delivering the opinion of the Court, said: "He (the plaintiff) claims no right in the building, or any pew in it, which has been invaded. There is no damage to his property, health, reputation, or person. He is disturbed in listening to a sermon by noises. Could an action be brought by every person whose mind or feelings were disturbed in listening to a discourse, or any other mental exercise (and it must be the same whether in a church or elsewhere), by the noises, voluntary or invol untary, of others, the field of litigation would be extended beyond endurance."

"If a man lives in a town, of necessity he should submit himself to the consequences of the obligations of trades which may be carried on in his immediate neighborhood, which are actually necessary for trade and commerce, also for the enjoyment of property, and for the benefit of the inhabitants of the town. If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop." Tipping v. St. Helens Smelting Co., 116 E. C. L. R. 608. "If the business be lawful and carried on reasonably and does not affect the health, comfort or ordinary uses and enjoyment of neighboring property, it cannot be a nuisance in fact or in anticipation, and the Courts cannot interfere with it." Rhodes v. Dunbar, 57 Pa. 274.

Byron Franks v. Lancaster Iron Works.

In Commonwealth v. Miller, 139 Pa. 77, it is said: "People who live in great cities that are sustained by manufacturing enterprises must necessarily be subject to many annoyances and positive discomforts, by reason of noise, dust, smoke, and odors, more or less disagreeable, produced by and resulting from the business that supports the city. They can only be relieved from them by going into the open country."

Again, in Austin v. Converse, 219 Pa. 3, it appeared that the Baldwin Locomotive Works, in 1902, erected a new building at Eighteenth and Buttonwood Streets, opposite to a part of complainant's premises. This building was large, and in it the work of riveting by pneumatic tools was carried on. This work was done all day and all night, except on Sundays. The noise was very loud and distinctly heard in the plaintiff's house. It was alleged that it was detrimental to her comfort and disturbed her sleep, and disturbed the comfort and interfered with the sleep of her boarders. The Court below issued an injunction, restraining the defendants from operating the pneumatic riveting machine between the hours of eight p. m. and seven a. m. This judgment was reversed by the Supreme Court. Mr. Chief Justice Mitchell, delivering the opinion of the Court, said: "The complainant went into the house in 1899 on a lease for one year, and notwithstanding its inconveniences and discomforts, she renewed her lease twice for a year at a time, and has since remained as tenant from year to year without any reduction in rent. . . . As already said, the learned judge found the facts against all the complaints except that as to the disturbance of sleep by the noise of the pneumatic riveting machines. These were put in their present location in 1902, and this bill was not filed until 1906. While this delay, as the learned judge found, would not estop her, yet it is very strongly persuasive that the complaint is exaggerated. In fact, gross exaggeration is manifest all through the case. It is expressly found as a fact in regard to the general complaint of nuisance from the operation of defendants' works and its increase since complainant's occupation of the house. Although one of the judge's conclusions of law is that no necessity has been shown for the running of the riveting machines at night, yet it is found as a fact that the works of the defendants have been operated by night in the way they are now operated for nearly twenty years.' A consideration. of the whole testimony, in view especially of this pervading exaggeration, compels us to differ with the learned judge below, so far as to hold that, while the noise is no doubt an inconvenience and discomfort, yet it is of the class incident to the neighborhood when the complainant voluntarily went into and remained in it, and is not sufficiently greater in degree to entitle her to interfere with it." The same impression is made upon us by the facts of this case. The securing of damages appears to us to be the sole object of the suit, rather than the correction of a wrong. The plaintiff must have moved into the neighborhood with a full knowledge of the surrounding conditions. Many other cases of similar import could be cited to sustain the same general proposition.

It is true that, where a lawful business is carried on at unreasonable hours to the annoyance and discomfort of neighbors, it may be re

Byron Franks v. Lancaster Iron Works.

strained or limited, or an action of damages may be maintained on the ground of nuisance. Dennis v. Eckhardt, 3 Grant 390. But to sustain such an action, the neighborhood in which it is carried on must be a residential neighborhood, and the plaintiff must not have moved into the locality where such noises have existed, or they must have increased to such an extent as to create a nuisance since he moved therein.

Section 20 of the Practice Act of May 14, 1915, P. L. 483, provides that "the defendant in the affidavit of defense may raise any question of law, without answering the averments of fact in the statement of claim; and any question of law so raised may be set down for hearing, and disposed of by the Court. If, in the opinion of the Court, the decision of such question of law disposes of the whole or any part of the claim, the Court may enter judgment for the defendant, or make such other order as may be just." The plaintiff's statement, as at present filed, is in our judgment deficient; but he may be able, under the facts, to so cure it that his case may be submitted to a jury. An opportunity is given him to cure it, if he can; and if he cannot, under the facts as he knows them to exist, it will be unnecessary to go to a trial, for under such circumstances no recovery of damages could be had in the case and judgment would have to be entered in favor of the defendants. Ten days' time is therefore allowed plaintiff for this purpose..

Court af Common Pleas of Lancastec County

A. G. Hamaker, Ex'r of J. R. Bomberger, v. The Fulton Farmers'

66

Association.

Promissory note of corporation Authority of treasurer to sign'Duly authorized "-Sufficiency of averment in statement-Practice Act of 1915.

In a suit against a corporation on a promissory note signed by an individual as treasurer, the statement must set forth how he was authorized to execute and deliver the note and what the specific provisions of that authority were. It is not sufficient to simply allege that he was duly authorized.

The Practice Act of 1915 requires the plaintiff to set forth all material facts necessary to entitle him to recover.

Question of law raised by affidavit of defense.

August Term, 1919, No. 74.

Harnish & Harnish and John E. Malone, for plaintiff.

H. Frank Eshleman and B. F. Davis, for defendant.

January 17, 1920. Opinion by HASSLER, J.

The plaintiff has brought this action to recover on three promissory notes amounting to $1650.00, payable at the Quarryville National Bank, to J. R. Bomberger as testator, and signed by D. R. Bomberger, Treas. They read "I promise to pay." In his statement the plaintiff

A. G. Hamaker, Ex'r. of J. R. Bomberger, v. The Fulton Farmers' Association. alleges as to each note that the defendant company made a certain promissory note, &c., and that "The aforesaid note was executed and delivered by D. R. Bomberger as Treasurer of the said corporation, and the said D. R. Bomberger . . as its treasurer, was duly authorized to execute and deliver the aforesaid note for the aforesaid defendant corporation upon the terms and conditions upon which the said note was executed and delivered." The defendant has filed an affidavit of defense, questioning the sufficiency of the statement. It is contended in it that the statement is not sufficient to entitle the plaintiff to recover, as it does not allege what the authority to D. R. Bomberger, as Treasurer of the defendant corporation, to sign the notes was, whether general or specific, nor does it state how it was given to him.

We think this objection to the statement is well taken. The Practice Act of 1915 requires the plaintiff to set forth all the material facts necessary to entitle him to recover. In Robertson v. International Text Book Co., 27 D. R. 18, it is decided that the statement shall contain all the material allegations which are the basis of the plaintiff's claim. As the Practice Act of May 14, 1915, P. L. 483, does not provide for a bill of particulars, it follows that the plaintiff in his statement shall disclose for the information of the defendant the essential facts of his case to enable him to make a proper defense.

The right to D. R. Bomberger, Treas., to bind the defendant company by executing and delivering promissory notes depends upon his authority to do so. What that authority was is, therefore, a most essential fact of plaintiff's case. To simply allege that he had 3 due authority" is not sufficient, as it does not give defendant notice of what he will be called upon to defend against. Was that authority general or special? Was it given by the by-laws, by the directors, or the stockholders?

In Mintz v. Natural Gas Co., 259 Pa. 477, it was held that "duly authorized" was not a sufficient statement of affiant's authority to make an affidavit of defense for a corporation, but it must be stated what his authority was and how it was given to him. In O'Neil v. Burnett, 263 Pa. 216, it is decided that in pleading set-off in his affidavit of defense, the defendant must allege what the authority of the officers was with whom the agreement out of which the set-off arose was made, whether it was written or oral, and what its specific provisions were.

We are satisfied that the plaintiff's statement to entitle him to recover must set forth how D. R. Bomberger was duly authorized to execute and deliver the notes in question, and what the specific provisions of that authority were. Unless the plaintiff within fifteen days of filing this opinion files a statement setting forth how D. R. Bomberger was authorized to sign the notes in question, judgment will have to be entered for the defendant.

If the plaintiff amends his statement in accordance with this opinion within fifteen days of filing it, the rule for judgment is discharged. If, however, such amended statement is not filed within that time, judgment is entered for the defendant.