#### KRULIKOWSKI *v.*TIDE WATER OIL SALES CORP.

1. Judgment — Res Judicata — Questions Triable on Transfer to Law Side of Court.

Where, in suit to restrain maintenance of oil station as nuisance, injunction was denied, but plaintiff was permitted to transfer to law side of court to recover damages for specific instance when one of defendant^ oil tanks overflowed, in said action at law plaintiff was properly restricted to claim arising out of said overflowing; othef claims, such as deterioration and depreciation of property, violation of building restrictions, etc., set forth in bill in equity case, being res Judicata.

2. Appeal and Error — Curing Errór — Trial.

Plaintiff ,’s attempt to bring into case and recover for items which were properly excluded was not prejudicial, where court in no uncertain terms excluded said items from jury’s consideration, limited testimony to proper items, and verdict is sustained by evidence.

3. Damages — Excessive Verdict — Weight of Evidence.

Verdict of $1,500 for damages to plaintiff’s property, which is sustained by evidence, *held,*not against weight of evidence.

Appeal from *Wayne;*Keidan (Harry B.), J.

Submitted January 22, 1932.

(Docket No. 31, Calendar No. 36,117.)

Decided March 2, 1932.

Case by Prank Krulikowski against Tide Water Oil Sales Corporation, á Delaware corporation, for damages to property alleged to be due to defendant’s negligence. Prom verdict and judgment rendered for plaintiff, both parties appeal.

Affirmed.

*Harry J, Lippmcm*(J. *Leon Katz,*of counsel), for plaintiff.

*226
      *Bulldey, Ledyard, Dickinson £ Wright (Harold B. Smith*and *John G. Garlinghouse,*of counsel), for defendant.

Butzel, J.

On December 20, 1926, Frank Krulikowski, plaintiff, filed a bill of complaint in the Wayne circuit court and sought to restrain the Tide Water Oil Sales Corporation, defendant, from maintaining an alleged nuisance caused by the erection and operation of its plant adjoining plaintiff’s home in Detroit. He claimed violations of building restrictions; also that the value of his property had deteriorated and decreased in value, and that his health had been impaired because of fumes, vapors, oils, and gases emitted from defendant’s plant. The trial judge found that there were no restrictions prohibiting defendant from conducting the business or using the property in the manner complained of, and that the testimony did not sustain plaintiff’s contention that defendant’s operation of the property constituted a nuisance. He further found that if the plaintiff suffered loss or damage because of the overflow of one of defendant’s tanks on a special occasion, and that this was due to the negligence of defendant, plaintiff had an adequate remedy at ■law, and might transfer his case to the law side of the court to determine this question and recover his damages.

On appeal taken by plaintiff, and in an opinion written by Mr. Justice Sharpe, the decree of the circuit court was affirmed, and the case remanded, with permission to plaintiff to transfer it to the law side of the court should he desire to continue the suit to recover for the loss and damage caused by the overflow of the tank through defendant’s negligence. See *Krulikowski*v. *Tide Water Oil Sales*
      *227
      *Corp.,*251 Mich. 684, in which all the questions in regard to. the deterioration and depreciation of plaintiff’s property and building restrictions, .etc., were decided and became *res adjudicaba,.*

Plaintiff transferred the case to the law side of the court, filed a declaration therein, and claimed damages not only for the overflow of the tank, but again sought to recover for deterioration and depreciation of his property and for all the other grievances and losses theretofore asserted. The trial court restricted plaintiff’s proofs to claims arising out of. the overflowing of the tank. These-consisted of the cost of removing and replacing soil, value of fruit trees killed, value of plaintiff’s time in supervision of laborers, the replacing of sidewalks and damages to the house shown by estimates of the cost of residing, reshingling and repainting. Defendant claimed that plaintiff was asking exorbitant amounts, and gave testimony showing that the work could be done for less money. The jury was expressly restricted ’from considering any of the claims which, under the ruling in the previous case, plaintiff was not entitled to. The jury rendered a verdict in favor of plaintiff for the sum of $1,500. Plaintiff appeals from the judgment entered on the verdict, and claims that he should have had the right to submit his claim for damages on the questions of deterioration, depreciation, etc. Defendant filed a cross-appeal and claimed that the verdict was against the great weight of the evidence. It further claims that the jury was prejudiced in plaintiff’s favor on account of his attempt to bring in the items that were properly excluded. The trial judge in no uncertain terms excluded from the consideration of the jury the improper claims of plaintiff and limited the testimony to the damage caused *228by the overflow of the tank. The verdict is sustained by the evidence, and the judgment is affirmed. As both parties appealed, no costs will be allowed.

Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.