
    Village of Cardington v. Adm’r of Fredericks.
    
      Action for a nuisance— When abates.
    
    An action against an incorporated village founded upon a petition alleging in substance that a street much used by the citizens and the public, was so unskillfully and negligently constructed and left by the defendant as to be in an unsafe and dangerous condition, and allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that it was highly dangerous, and that the plaintiff, while lawfully passing along the street, accidentally and without fault or negligence on her part, was precipitated down an embankment, whereby she was greatly bruised and injured, for which damages she asks judgment, is an action “for a nuisance” within the meaning of section 5144, Revised Statutes, and abates at the death of the party injured.
    (Decided May 21, 1889.)
    Error to the Circuit Court of Morrow County.
    Mary J. H. Fredericks commenced an action against the Incorporated Village of Cardington, in the Court of Common Pleas of Morrow County. After answer filed the plaintiff deceased, and, by leave of court, her administrator became party plaintiff, and filed petition. The sole issue in the case is, as to whether an action can be maintained on that petition, which is as follows:
    “ Mary J. H. Fredericks, Plaintiff,
    
    
      against
    
    
      “ The Incorporated Village of Cardington, Ohio, Defendant.
    
      “ Petition of James M. Sherman, Administrator.
    
    
      “ And now comes the said James M. Sherman and represents :
    “ First — That on or about the 18th day of July, A. D. 1884, the said Mary J. H. Fredericks died intestate.
    
      “Second — That on the. 4th day of August, A. D. 1884, he, the said James M. Sherman, was by the Probate Court within and for the county of Morrow, Ohio, duly and legally appointed administrator of the estate of Mary J. H. Fredericks, deceased; that he gave his bond as required by law as such administrator, and entered upon the discharge of said trust. and that he is now the duly and legally appointed and acting administrator of said estate.
    
      “ Third — That at the October term of this court, 1884, the death of the said Mary J. H. Fredericks was duly suggested. And by order of the court the administrator was made a party to ' said action, and leave given said administrator to file petition.
    
      “ Fourth — That pursuant to said order of court, and leave to plead, the said administrator says that the said defendant is a municipal corporation, duly organized under the laws of the State of Ohio.
    
      “ Fifth — That on or about the 28th day of April, A. D. 1883, a certain public street in said village, known as ‘ Main Street/ which was much traveled and used by the citizens of said village and the public generally, was so unskillfully and negligently constructed, and left by the defendant, as to be in an unsafe and dangerous condition, which street thus unskillfully and negligently constructed, .was, by said defendant, •allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that the same became and was at the date last aforesaid highly dangerous. All of which the said defendant then and there had due and legal notice.
    
      “ Sixth — That on the said 28th day of April, A. D. 1883, the said Mary J. H. Fredericks was lawfully traveling on said street, and while lawfully passing along said street, accidentally, and without fault or negligence on her part, was precipitated down an embankment, a distance of about twenty feet, whereby she was greatly bruised and injured.
    
      “ Seventh — That the injury herein complained of, was wholly in consequence of the dangerous condition of said street, as herein set forth.
    
      “ Eighth — That by reason of the premises she was damaged in the sum of five thousand dollars.
    
      “ Ninth — That on the 10th day of November, A. D., 1883, she filed with the clerk of said defendant her claim for damages, as herein set forth, which said claim remained unadjusted for a period of sixty days and more prior to the commencement of this action.
    
      “ And yet the said defendant has not paid said sum of money, nor any part thereof, though often requested so to do.
    “ The said James M. Sherman, as administrator, as aforesaid, therefore prays judgment against the said defendant for the sum of five thousand dollars, with interest and cost of suit.”
    The court of common pleas sustained a demurrer to the petition, and dismissed the action.
    This judgment was reversed by the circuit court. To obtain a reversal of that judgment this proceeding in error is prosecuted.
    
      Powell, Owen, Bicketts & Black, with B. F. Bartlett, and •/. K. Dunn, for plaintiff in error.
    Sec. 2640, Rev. Stats., provides that the council of municipal corporations “ shall have the care, supervision and control of all public highways, streets, * * * * * within
    the corporation, and shall cause the same to be kept opeq and in repair and free from nuisance.”
    
    The plaintiff in the original action complained of a nuisance, in one of the streets of the village, and of a violation of a duty enjoined by the above section 2640, to keep the streets free from nuisance.
    
    That to obstruct, etc., a highway is a nuisance, is a proposition too obvious to require authorities to support it.
    “No one can have an action for .a nuisance or obstruction in a common highway, without assigning some particular damage to himself individually, independent of the general inconvenience to himself as one of the public,” etc. 1 Addison on Torts, sec. 279; Columbus v. Jacques, 30 Ga. 506; Gerrish v. Brown, 51 Me. 256 ; Morton v. Moore, 15 Gray (Mass.), 573 ; State v. Spainhour, 2 Div. & B. (N. C.) L. 547 ; State v. Atchison, 24 Vt. 448 ; Dimmett v. Eskridge, 6 Mumf. (Va.) 308.
    Sec. 5144 Rev. Stats, provides that the following actions shall abate by the death of either party : Actions for libel,
    slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office.
    What is an action “ for a nuisance ” ? It certainly can not be an action to abate a nuisance. An action for slander, for assault and battery, etc., is certainly an action for damages resulting from the slander, the assault and battery, etc. By analogy, an action “for a nuisance” is an action for damages resulting from a nuisance.
    The latter question ought to be set at rest by a brief reference to the history of this provision.
    The Civil Practice Act of 1831 (Swan-Stat. Ed. 1840), which was in force until the civil code was adopted, provided that “ actions for libel, * * * actions on the case for nuisance,” etc., should abate by the death of either party. Upon the adoption of the code, there being no longer such a thing as an action on the case, these words were simply dropped out; but the nature of the action of course remained the same. It was an action for damages resulting from a nuisance.
    
      Andrews & Sims, for defendant in error.
    This is not an action that abates by reason of the death of the plaintiff. The petition states that the street was unskillfully and negligently constructed, a-nd was unsafe and dangerous, and that without her fault, but by reason of the fault of the defendant, she was precipitated down an embankment twenty feet. See petition on page 17 of record. The obstruction complained of might or might not be a nuisance, and yet if the dangerous embankment had not been there, she would not have been injured by reason of the obstruction. Section 2640, Revised Statutes, is not meant for a trap to catch the unwary; and it is not the intent that the council of a corporation shall dig a pitfall in a public street, and bait it with a nuisance, and if by it, it succeeds in killing its victim, it escapes liability. Besides that, as was shown by the petition, it was the unsafe and unrepaired condition of the street that caused the injury.
   Spear, J.

The grounds urged for reversal of the judgment of the circuit court are :

1. The action was for a nuisance, and hence abated at the -death 'of the party injured.

2. The petition did not state facts sufficient to constitute a cause of action.

Was the action below one for a nuisance? The gravamen of the petition is that .the deceased was injured because of the dangerous and unsafe condition of the street along which she was traveling; that the street had been unskilfully and negligently constructed and left, was out of repair, and obstructed by rubbish and refuse. In other words, the charge is that the village constructed a dangerous road, and allowed it to become and remain out of repair, from which private damage ensued.

The term “nuisance” is of extended application. Many definitions are given, necessarily varied because the word applies to a large number of subjects. “ The term nuisance/ derived from the French word nuire,’ to do hurt or to annoy, is applied in the English law indiscriminately to infringements upon the enjoyment of proprietary and personal rights.” Addison on Torts, 361. “Nuisance, something noxious or offensive. Anything not authorized by law which maketh hurt, inconvenience or damage. It may be (a) private, as where one so uses his property as to damage another’s, or disturb his quiet enjoyment of it; (b) public, or common, where the whole community is annoyed or inconvenienced by the offensive acts, as where one obstructs a highway, or carries on a trade that fills the air with noxious and offensive fumes.” Cochran’s Law Lexicon, 192.

We presume it can hardly be doubted that the street, as described in the petition in this case, was, in law, a nuisance. “ Nuisances to highways, bridges and public rivers. These annoyances may be either positive, by actual obstruction, or negative, by want of reparation. In the latter case, only those persons are liable whose duty it is to keep the road, etc., in repair.” Harris’ Criminal Law, 118. “ Defective highways a nuisance. — For the communities, individuals or corporations, upon whom is imposed the burden of keeping a highway in repair, to permit the same to be out of repair so as to endanger the safety of persons or property passing over it, or so as seriously to interfere with convenient transit over the same, is a public nuisance at common law, subjecting the communities, persons or corporations, upon whom the duty of keeping it in repair is imposed, to indictment, and generally to damages at the suit of persons injured by reason of such defects or want, of repair.” Wood on Nuisances, section 307.

We conclude that the generally accepted rule is, that although the nuisance be a public one, yet it is private also, if an individual sustain a special injury thereby, and he may maintain an action and recover his special damage, whether it be direct or only consequential.

This petition then charged the maintenance of a nuisance. It charged that by reason of that nuisance the plaintiff’s intestate had been injtired. ‘It is insisted that the action below was for negligence. This proposition does not seem to advance the argument.. The maintenance of any nuisance implies negligence, or worse. The negligence averred produced a nuisance, and it was the nuisance which was the occasion of the injury. Any failure to keep a safe highway implies neglect, but it was necessary to allege a state of facts from which the negligence would be inferred. Averring such state of facts showed that a nuisance had been created, but it was not necessary that the word “ neglect ” or negligence,” should be used in the petition. The action was, therefore, “ for a nuisance,” i. e., for maintaining a nuisance from which private damage ensued.

The statute (sec. 2640, Rev. Stats.), gives to municipal corporations the care, supervision and control of all public highways, etc., and requires that the same shall be kept open, and in repair, and free from nuisance. In effect it is a requirement that the corporation shall prevent all nuisances therein, and when, by allowing a street to become so out of repair as. to be dangerous, the corporation itself maintains a nuisance, and a suit to recover for injuries thereby occasioned, is for damage arising from a nuisance, or for a nuisance.” The statute does not give a remedy; it but enjoins the duty. And when a duty to keep streets in repair is enjoined on municipal corporations, either by a statute in the form now in force, or by a provision which authorizes them to pass ordinances for regulating streets and keeping them in repair, and gives power to levy taxes for that purpose, and presumably, to obtain a fund for satisfying claims for damages, a right of action for damages caused by such neglect, arises by the common law.

Did the action abate by the death of the person injured? As a general rule, at common law, actions ex contractu survived, while actions ex delicto did not. To this there were exceptions. One was that, in actions ex delicto, so far as the act complained of resulted in damage to property, the action survived Another was, that though the action was founded on contract, as a suit for breach of promise of marriage, yet if the damage resulting was to the person, and not to the property, the action did not survive. The reason for the dis■tinction was stated by Lord Ellenborough, in Chamberlain v. Williamson, 2 M. & S. 408, thus: Executors and ad-

uni nistrators are the representatives of the temporal property, •that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate.” In other words, the pain and suffering endured, or the impairment of the body, not being a property interest, did not pass to a personal representative. Nor were such causes assignable. The rule was that demands arising from injuries strictly personal, whether arising upon tort or contract, are not assignable.” McKee v. Judd, 12 N. Y. 622. “A chose in action which is transmissible to an executor or administrator, under our law, is .assignable in equity; but personal torts, which die with the person, are not assignable.” Grant v. Ludlow, 8 Ohio St. 37. •Survivability and assignability of things in action were thus treated as convertible terms. “ In general, it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable o'f ■passing by assignment.” Comegys v, Vasse, 1 Pet. 213.

In this view, at common law, no action for death occasioned by wrongful act could be maintained. No right was transmitted, because no person has such an interest in his own life as will constitute property in any legal sense,' and property .rights only were transmissible. Hence followed the.enact■ment of statutes in many of the states, including our own, giving a right of action for death occasioned by wrongful act, in the name of the personal representative, for the benefit of .the next of kin, or widow, or both. It will be noted that it nowhere appears that the death in this case was caused by the injuries complained of, nor does the petition of the administrator purport to be founded on the statute referred to.

So that when our statute provides that actions for damages for slander, libel, assault and battery, on the case for nuisance, etc., shall abate by the death of either party, it but gives legislative expression to a rule of the common law. A change made by the adoption of the code is important to notice. Previously the statute caused such action to abate by the death of •either party. The code, sec. 399, provided that such action .should abate by the death of the defendant. The present statute, sec. 5144, Rev. Stats., which took effect January 1, 1880, restored the original language, and provided that the actions, therein enumerated, including actions for a nuisance,” should abate on the death of either party. The injury to the party in this case occurred April 28, 1883.

The question is not without .difficulty, and much may be said on the other side, but, as conclusion, upon the grounds .stated, we think the action abated upon the death of plaintiff by force of sec. 5144.

By reason of the conclusion reached on the first proposition, the other becomes unimportant. However, we are of opinion that, but for the effect of sec. 5144, the petition would not have been bad on demurrer. It is not a model of definiteness, perhaps, but the remedy for such defect is by motion, and not by demurrer.

Judgment of the circuit court reversed, and that of the common pleas affirmed.  