John Borowiak filed a petition in the Cuya-hoga Commion Pleas against the Cleveland Structural Steel Co. in which he set up three causes of action. First, for damages for loss of sleep, loss of time from work, and personal injury caused by noises, vibrations, odors, etc., emanating from the company’s factory; second, to enjoin certain alleged wrongful acts of company in the conduct of its business. Third, for damages for injury to property due to an alleged continuing nuisance. On motion of the company a verdict was directed in its favor. Error was prosecuted and the Court of Appeals held:

1. Where a plaintiff possesses or supposes himself to possess primary rights, both legal and equitable, arising out of the same subject matter or transaction, and avers the necessary facts in his pleadings, praying for both remedies, corresponding to different rights, but on trial fails to establish his equitable cause of action, his action should not therefore be dismissed.

2. Lower court did not pass on the second cause of action at all, and the case should have been submitted to the jury as there was evidence tending to support material allegations of the amended petition. Eller v. Goehler 68 OS. 51.

Judgment reversed and cause remanded.