Carter v. Johnson

SHINN, P. J.

This is an appeal on the judgment roll from a judgment in favor of the defendants entered by the trial court sitting without a jury. The action was on a complaint sounding in nuisance for injunctive relief and damages. The alleged nuisance consisted of maintaining a “horse farm” on property adjacent to plaintiffs’ residence, and a resulting entry of noise, smells, insects, etc. over and onto plaintiffs’ land. Damages were claimed for injury to the property of plaintiffs and, separately, for mental and emotional suffering sustained by Mrs. Carter.

Plaintiffs’ contention that the finding that defendants’ premises were not used for commercial purposes or in such a nature as to constitute a business enterprise (a use prohibited by county ordinance) is not supported by the evidence, may not be considered on this appeal on the judgment roll. (3 Cal. Jur.2d, Appeal and Error § 267; see also

White

v.

J ones,

136 Cal.App.2d 567 [288 P.2d 913];

Purdy

v.

Purdy,

138 Cal. App.2d 402 [291 P.2d 1005].)

Plaintiffs contend that an implied finding necessarily flows from three of the express findings of the court, resulting in such an inconsistency in the findings as to require reversal of the judgment. The three findings in question may be reduced to simple form, as follows: 1. Defendants’ conduct and the

[591]

manner in which their property was maintained did not cause injury to plaintiff, Mary M. Carter, or damage to plaintiffs’ property. 2. Defendants’ conduct and said conditions would not interfere with the comfort of a normal person of ordinary sensibilities. 3. Plaintiff, Mary M. Carter, was a hypersensitive person of abnormal sensibilities with respect to living conditions surrounding her home.

As we understand plaintiffs’ reasoning it is that since the court impliedly found that persons of normal sensibilities would not be offended by the conditions created and maintained by defendants, and also found that Mrs. Carter was supersensitive in such matters, the court must have believed and intended to find she was mentally and emotionally disturbed by the conditions. And it might be asked, why would she have sued if she had not been distressed ?