FOOD MACHINERY & CHEMICAL CORPORATION v. Meader
| Citation | 294 F.2d 377 |
| Decision Date | 26 September 1961 |
| Docket Number | 17059.,No. 17058,17058 |
| Parties | FOOD MACHINERY & CHEMICAL CORPORATION, a Corporation, operated as Westvaco Mineral Products Division, and J. R. Simplot Company, a corporation, Appellants, v. W. S. MEADER and May Meader, husband and wife, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
B. W. Davis, Pocatello, Idaho, for Food Machinery & Chemical Corp.
Hawley & Hawley and Lloyd E. Haight, Boise, Idaho, for J. R. Simplot Co.
Louis F. Racine, Jr., and Hugh C. Maguire, Jr., Pocatello, Idaho, for appellees.
Before ORR, HAMLEY and HAMLIN, Circuit Judges.
On January 31, 1957, W. S. Meader and May Meader, husband and wife, filed complaints in the United States District Court for the District of Idaho, Eastern Division, against Food Machinery & Chemical Corporation and J. R. Simplot Company.1 The Meaders sought to recover for damages allegedly resulting from the operation of the defendants' industrial plants which were located near the plaintiffs' trout hatchery. The district court's jurisdiction was based on diversity of citizenship, 28 U.S.C.A. § 1332. After a trial before a jury judgment for damages was entered against the defendants. Timely notice of appeal was filed, and this court has jurisdiction of the appeal under the provisions of 28 U.S. C.A. §§ 1291 and 1294.
Warren S. Meader and May Meader, appellees herein, were the owners of a "trout farm" and hatchery located in Power County, Idaho, and the appellants are the owners and operators of industrial plants located about two miles from the Meaders' trout farm.2 It is undisputed that quantities of fluorine compounds were given off in the manufacturing processes of the appellants; and the Meaders claim that these compounds, both solid and gaseous, contaminated their property and the ponds and streams thereon, killed their fish, and damaged trout eggs that they marketed, making the property generally unsuitable for use in the operation of a hatchery. The evidence was presented to a jury which assessed damages against Simplot in the sum of $4,246.41 and against Food Machinery in the sum of $57,295.80. It is from the judgment entered on this verdict that the defendants have brought this appeal. The three main contentions which are pressed before this court are as follows:
I. The evidence is insufficient to sustain the jury verdict.
II. The appellees concealed evidence at the time of trial.
III. The court erred in admitting certain documentary evidence.
The appellants' primary contention is that the evidence is insufficient to support the finding of the jury.
The appellees, commencing some time in 1915 and for a long period thereafter, operated a fish hatchery near Pocatello, Idaho, raising trout for sale commercially; developing brood stock for the taking of trout eggs; and selling trout eggs in a market that had been developed over the years. Simplot commenced operation of its plant in 1944, and Food Machinery commenced operation of its plant in 1949. Each of the plants emitted fluorides in gaseous and particulate form and have continued to do so in greater or lesser amounts. The greatest emission occurred in 1951 through 1954, and the following figures show the discharge in pounds per day of effluent in the way of fluoride:
Food Machinery & J. R. Simplot
Chemical Corporation Company
1949 1700 1949 Unknown
1950 1700 1950 Unknown
1951 3300 1951 Unknown
1952 3300 1952 Unknown
1953 6500 1953 484
1954 3100 1954 110
1955 600 1955 190
1956 600 1956 190
The amount of material that was emitted from the plants is not in issue on this appeal. The figures given above were taken from studies done by employees of the appellants and are agreed to as being correct.
Fluorine and fluorides are toxic, and it is recognized that a sufficient concentration can be harmful and may eventually result in death. Pronounced losses of fish and difficulty with fish eggs did occur at the Meader property during the years involved in this law suit, and the extent of the losses that the Meaders experienced is not an issue on this appeal.3 The jury found that the losses resulted from the fluorides emitted by the appellants. After a review of all the evidence we have concluded that it does support the result reached by the jury and we have outlined the relevant evidence in order to show how we arrived at this decision.
The testimony of Warren Meader, one of the appellants, and that of his son provided evidence from which the jury could find the following. The hatchery was started by Warren Meader in about 1915, and he operated it until 1946 when he turned the operation over to Phillip, his son. Phillip operated the hatchery until 1954, when his father retook control of the operations and ran the business until the property was sold in June of 1956. The main business at the hatchery was the production of trout eggs which were sold to hatcheries all over the United States and even shipped to Japan on three occasions. The average number of eggs taken per year was 20 million; Warren Meader never took more than 22 million, but his son did take about 30 million in one year. The temperature of the water on the Meader property is particularly suited to the raising of trout eggs, for when the water comes from the springs, it is about 52 degrees, a low temperature beneficial in the production of healthy eggs. After Warren Meader left the property in 1946 everything went as usual until the 1949-50 egg season when some trouble was noticed. A large crop was taken in the 1950-51 season and all of the eggs were sold, but the eggs were unproductive. There was little or no egg business after 1952. The customers that it had taken thirty years to gather deserted the Meaders when it turned out that the eggs did not hatch properly.4 Phillip worked hard to keep the fish pools clean; he had a crew working on the tanks; and he checked the oxygen level of the water regularly. He experimented with fish and fish eggs from other places in an attempt to determine the cause of the trouble. He testified that he ran the hatchery in the same way that his father had run it successfully for years and that though there was no evidence of any fish diseases, the loss of adult fish was very great at times, the eggs were worthless, and the customers were lost. Phillip testified that he saw and smelled the smoke from the defendants' plants hanging heavy around his property. It was heaviest in the evening and in the early morning; at times being so thick that he couldn't see from one building to another, some 200 to 300 feet. When Warren Meader returned to take over the operations in 1954, he did so because he felt that his son was responsible for the losses that had occurred in the preceding years. It was obvious that something was wrong, and he wanted to find out what it was. When Warren Meader returned he found everything in good order, for the operations were being conducted as he had conducted them in the past. He thought at first that the death of some of the fish might have been due to the hot weather at that time, and he decided to see if it would help if he raised the level of the water in the ponds. There was milkweed and tule along the bank. After he raised the water level, the fish would swim in among the vegetation, but they would not swim out. He then lowered the water level and pulled out the vegetation. Then the fish stopped dying. After the first rain of the season the water ran off the willows that hung over the fish pond and "there was a string of dead fish right down through that pond three and a half to four feet wide." About one-tenth of the total number of fish was killed. Young fish died in the hatchery where fish had never died before; and during the week after the rains, the Meaders were hauling away about a ton of dead fish a day. Also, of the fish that did hatch many were cripples; that is, their spinal cords were crooked. Phillip, who had worked at the hatchery since he was a boy, testified that the dead fish showed no evidence of having any disease and that there was no way that he could explain the events that had occurred except by looking to the operations at the defendants' plants.
Austin J. Bennett, who worked for the Meaders during the period of the trouble that caused this law suit, lived in the valley near the fish ponds. He testified that he was familiar with the odor of the smoke from the Simplot plant and that he recognized that odor down by the Meader hatchery. He said that at times the odor was so bad that He also testified that from where he lived he could see the smoke coming from both plants; it was heaviest in the mornings and the evenings.
Theodore Kass, a chemical engineer for defendant Food Machinery & Chemical Corporation who was in the processing division doing studies on plant improvement from 1949 to 1952, testified as to the operations of that defendant. Phosphate shale is brought to the plant where it is processed in a rotary kiln where the temperature is often as high as 1100 degrees Centigrade. Water, organic matter, and a fluorine compound called fluoropatite are given off as a result of this heating process. Gaseous fluorides are also emitted from slag dumped as waste, but later testimony indicated that the amount of fluoride given off by the slag is negligible compared to that which comes out of the chimneys. Part of Kass' work was the conducting of studies of the effects of high concentrations of fluorides, but his main interest was in the effect of fluorides on cattle, and he was not concerned with fish. However, samples were taken to obtain the concentration of fluoride in the water at the Meader hatchery which showed a range of...
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