The opinion
Mr. JUSTICE CRAVEN concurring in part and dissenting in part:
As I view it, the judgment for the plaintiffs Sidney Schatz and Lois Schatz for damages should be affirmed and the judgment for Sidney Schatz and Frances R. Klein, as copartners, should be reversed and the cause remanded for a determination of damages only.
I agree with the majority opinion that the defendant’s liability in this case is clearly established. Its liability is due to a nuisance created and maintained by it, and it is immaterial that the defendant may have used the highest degree of care. Negligence is not a necessary component of a nuisance cause of action. Richards v. Village of Edinburg, 97 Ill.App.2d 36 ,239 N.E.2d479 (5th Dist. 1968); ILP, Nuisances, sec. 13.
As to the damage phase of this case, as distinct from the original request for injunctive relief, the relevant hardship on the defendant and tiie plaintiffs is not a matter for consideration; neither is it relevant that the defendant is engaged in a useful, important or socially acceptable enterprise. The Supreme Court of Wisconsin, in stating this rule, said:
“We know of no acceptable rule of jurisprudence that permits those who are engaged in important and desirable enterprises to injure with impunity those who are engaged in enterprises of lesser economic significance * * Jost v. Dairyland Power Cooperative, 172 N.W. 2d 647, 653 (1970).
In this case the evidence is clear that the plaintiffs have been unable; on many occasions within the limitations period applicable, to use and enjoy their residence. The evidence is clear that the pervasive odor emanating from the defendant’s plant was such as to amount to a total denial of use on some occasions and resulted in discomfort and inconvenience to the plaintiffs more of the time. While it is true that there is no dollar evidence as to their expenditures for insulation and air conditioning in the frustrating effort to make the home habitable, such is not an essential bit of evidence in order to sustain the judgment in the amount here involved. While the trial court did make findings with reference to expenditures for insulation and ah conditioning, such can be treated as surplusage since, as I view it, the record is otherwise sufficient to sustain the award.
Where the property alleged to be damaged by a nuisance is occupied by the plaintiff as a home, his damages may be measured by his discomfort and deprivation. ILP, Nuisances, sec. 65; 66 CJS, Nuisances, sec. 19, at 771.
Turning now to the judgment for damages to the plaintiffs as co-partners in their operation of the theater, I agree with the majority opinion statement as to the measure of damages. The trial court found that the business operation was required to make refunds to patrons on frequent occasions, sometimes of a limited nature and sometimes involving many patrons. It further found that their normal business expected was substantially reduced whenever the odor emanating from the defendant’s plant was present. Here again, specific dollars amounts of damages are not found, and it may well be that improper elements of damage went into the court’s consideration in arriving at the amount of the judgment.
In Tri-County Grain Terminal Co. v. Swift & Co., 118 Ill.App.2d 313, 322 ( 254 N.E.2d 311, 315 (4th Dist. 1970)), we stated:
“Whenever the fact of injury or damages has been proved with reasonable certainty, some uncertainty as to the amount of damages sustained is not sufficient ground to set aside a jury verdict awarding damages. A party cannot be permitted to escape liability for his wrongful acts simply because the plaintiff’s damages are difficult to prove. The ‘best evidence’ which the nature of the subject will permit in such cases is sufficient to sustain a jury award. Johnston v. City of Galva, 316 Ill. 598 , 147 N.E. 453 , 38 ALR 1384 (1925) * * *”
That rule seems to me to have some application here. This rule is equally applicable in a bench trial. While the measure of damage to a business by reason of a defendant’s tortious conduct must be measured by the loss of profits, the majority seem to be imposing a difficult, if not impossible, burden of proof for this injury. Some damage, at least, is established. It would seem to me to be appropriate that the cause be remanded for further hearing as to the damage issue with reference to the business property. Outright reversal amounts to a denial of any meaningful remedy.