APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Mr. I. A. Jennings, City Attorney and Mr. Hess Seaman, his Assistant, for Appellant.
Mr. James E. Nelson and Mr. L. C. McNabb, for Appellees.
[51 Ariz. 119] LOCKWOOD, J.
This is an appeal by the City of Phoenix, a municipal corporation, hereinafter called [51 Ariz. 120] defendant, from a judgment in favor of Will Johnson and Hortense Johnson, his wife, hereinafter called plaintiffs. The record presents the following situation:
Plaintiffs brought suit alleging, in substance, that they were the owners of and residents upon certain premises to the southwest of the City of Phoenix, and that defendant had built and installed a certain sewer system for said city which conveyed all of the sewage of the city to a sewage disposal plant within some 2,000 feet of plaintiffs' property; that beginning with the first day of January, 1934, "... said sewage disposal plant is so carelessly and negligently operated by the defendant herein and is so inefficient and out of repair that it cannot at all times handle the sewage entering therein from the sewage mains aforesaid, and frequently breaks down and becomes totally useless and out of repair, at which times it is necessary to by-pass all sewage arriving at the sewage disposal plant into the Salt River immediately South of said disposal plant and within 150 yards thereof and not to exceed three-eighths of a mile away from plaintiffs' property, home and residence
aforesaid; that since the first day of January, 1934, said sewage disposal plant has as time progressed, continuously becomes more inefficient and the by-passing of sewage as aforesaid more frequent by reason of all of which noisome and obnoxious odors, gases and foul and nauseating smells arise from said disposal plant from the sludge thereon stored and from the sewage by-passed into the Salt River, which said noisome, obnoxious gases, odors, gases and foul and nauseating smells are carried and conveyed by prevailing air currents coming from a Southwesterly direction over across and upon plaintiffs' said property, home and residence, all of which is nauseating to the plaintiffs, renders them physically sick, disturbs their repose at night, and makes a continued residence on the said property impossible and has utterly destroyed the value of the plaintiffs' property by reason of which their property loss is the total destruction of the value [51 Ariz. 121] of said property herein of the value of $6,500.00, and they are damaged in the comfortable and free enjoyment of life and other property in the sum of $3,500.00;"
Defendant filed a plea in bar which in substance alleged that plaintiffs had in the year 1932 assigned any cause of action which they had or might thereafter have as a result of the operation of defendant's sewer system to C. C. Howell and Mary E. Howell; that the latter had brought suit against the City of Phoenix, setting up, in substance, all the matters which plaintiffs herein allege in the present action; and that all of the issues of the Howell action had been found in favor of defendant, and judgment rendered thereon, which judgment had never been appealed from and was still in force and effect. The defendant also answered, admitting the building and operation of the sewer system, but denying all the other allegations of the complaint. Plaintiffs demurred to the plea in bar, which demurrer was by the court sustained, and the case went to trial before a jury on the complaint and the general denial. Defendant endeavored at a number of times during the progress of the case to raise the question of res adjudicata by the Howell suit and assignment above referred to, but any evidence in regard to that was consistently ruled out by the trial court. The jury returned a general verdict in favor of plaintiffs, in the sum of $1,000, whereupon this appeal was taken.
There are nine assignments of error, raising a number of questions which we shall consider in the manner which seems advisable. The first question is whether the court properly sustained the demurrer to the plea in bar. Such plea sets up the following assignment made by plaintiffs July 6, 1932, to C.C. and Mary E. Howell:
"That we, Will Johnson and Hortense Johnson, his wife, for value received, do hereby sell, assign, transfer [51 Ariz. 122] and set over unto C. C. Howell and Mary E. Howell, husband and wife, any and all sums of money now due and owing to us, any and all claims, demands and causes of action which we now have or may have against the City of Phoenix, in the State of Arizona, arising out of the construction, installation, maintenance and operation of the sewage disposal plant of said City located on South Twenty-third Avenue near the Salt River."
Thereafter, the Howells brought suit against defendant, setting up the ownership by the Johnsons of the same premises involved in the present action, the maintenance and operation of the sewage plant, and:
"... That said sewage disposal plant has been so negligently, carelessly and inefficiently constructed, maintained and operated, that said plant and every part, unit and stage in the operation thereof, and the fertilizer factory constructed in connection therewith, and the drainage therefrom, have at all times since the beginning of the operation thereof, emitted, given off and disc h arged into the pure air, vile, stinking, nauseating and noisome gases, vapors and odors, which said gases, vapors and odors, extend over and upon the premises and home of the said Will Johnson and Hortense Johnson, his wife, and penetrate their said home in such volume and to such extent as to destroy the enjoyment, material comfort and repose of the said Will Johnson and Hortense Johnson, his wife, to their joint damage in the sum and amount of five thousand dollars ($5,000.00).
"That the construction, maintenance and operation of said plant at the location and in the manner aforesaid, has rendered the home of the said Will Hohnson and Hortense Johnson, his wife, uninhabitable and unmarketable and has entirely destroyed the rental value of the remaining ...