McDowell v. Hyman

Searls, C. This is an action to recover damages sustained by the plaintiff as a tenant of the defendants of the third and fourth floors of the building 105 Stockton street, San Francisco, by reason of repairs and alterations made by defendants upon the second floor of said building, whereby the business of the plaintiff as the keeper of a lodging-house was injured; her water supply cut off, her furniture damaged by dust and lime; her ingress and egress interfered with by debris in the halls and on the stairs, in consequense of which her lodgers forsook their rooms, etc.

The answer denies that plaintiff was at any time an occupant of the third floor of said building as a tenant of the defendants, or otherwise; admits that they made repairs on the second floor, and that plaintiff was their tenant of the fourth floor of the house up to April 1, 1889, and deny most of the other allegations of the amended complaint.

Plaintiff had a verdict for nine hundred dollars, upon which judgment was entered.

Defendants appeal from the judgment and from an order denying their motion for a new trial.

The first point made by appellants for reversal, is that the evidence was not sufficient to warrant the jury in finding that plaintiff was the tenant of the third floor of of the building.

Upon this point there is a substantial conflict in the evidence, and in such cases the verdict will not be disturbed upon the ground that it is contrary to the evidence.

If the jury believed the testimony of the plaintiff they were justified in finding in her behalf on the question under consideration.

Again, the court instructed the jury very clearly that the question of the tenancy of plaintiff of the third floor [69]was one of fact for their determination, and that if they found on that question in favor of defendants, and found further that plaintiff was entitled to recover, then, and in that case, it could only be for such damages as she sustained in the use and enjoyment of and to the property in and on the fourth floor.

Non constat, but that the jury may have found plaintiff was not the tenant of the third floor, but at the same time found her entitled to recover nine hundred dollars on account of the disturbance to her use and enjoyment of the fourth floor, and the consequent destruction of her business by the loss of her lodgers, which business, as she testified, yielded her a profit of several hundred dollars per month, coupled with injury to her furniture, etc.