Devoke v. Yazoo & M. V. R. Co.

• Decision Date: 17 March 1947
• Docket Number: 38258.
• Citation: 211 La. 729,30 So.2d 816
• Court: Louisiana Supreme Court
• Parties: DEVOKE et al. v. YAZOO & M. V. R. CO.

30 So.2d 816

211 La. 729

DEVOKE et al. v. YAZOO & M. V. R. CO.

No. 38258.

Supreme Court of Louisiana

March 17, 1947

Rehearing Denied May 26, 1947.

Appeal from Twenty-Sixth Judicial District Court Parish of Bossier; James U. Galloway, Judge.

Vernon W. Foster and Chas. A. Helsell, both of Chicago, Ill Thompson, Thompson & Sparks, of Monroe, and Wise Randolph, Rendall & Freyer, of Shreveport (A. B. Freyer, of Shreveport, and M. C. Thompson, of Monroe, of counsel), for defendant-appellant.

Turner B. Morgan and Booth, Lockard & Jack, all of Shreveport, for plaintiffs-appellees.

Allen Barksdale, of Ruston, Breazeale, Sachse & Wilson, of Baton Rouge, A. L. Burford, of Texarkana, Ark., Richard L. Crowell, of Alexandria, Chaffe, McCall, Bruns, Toler & Phillips, Curtis, Hall & Foster and Dufour, St. Paul & Levy, all of New Orleans, P. S. Gaharan, Jr., of Jena, Gist, Thornton & Murchison and White, Holloman & White, all of Alexandria, Hudson, Potts, Bernstein & Davenport, of Monroe, F. P. Lee, of Mansfield, Lemle, Moreno & Lemle, of New Orleans, Madison, Madison & Files, of Monroe, Milling, Godchaux, Saal & Milling and J. Blanc Monroc, all of New Orleans, Frank H. Peterman, of Alexandria, Esmond Phelps and Michael Provosty, both of New Orleans, Oliver & Digby, of Monroe, Thos. F. Porter, of Lake Charles, Seals & Atkins, of Homer, Shotwell & Brown, Sholars & Gunby and Theus, Grisham, Davis & Leigh, all of Monroe, and Wilkinson, Lewis & Wilkinson, of Shreveport, amici curiae for appellee.

FOURNET Justice.

This is a sequel to the case of McGee et al. v. Yazoo & M. V. R. Co. 206 La. 121, 19 So.2d 21, wherein we held that the manner in which the defendant operated its terminal facilities located on its ten-acre tract of land in Bossier City, Louisiana, consituted an actionable nuisance, and ordered it to remedy and abate the same, awarding damages in compensation for the injuries suffered by the plaintiffs in that suit who were property owners living in the vicinity of the facilities.

Soon after the judgment became final in that case, Mr. and Mrs. C. M. Brown, who had been among the parties plaintiff, joined by Mr. and Mrs. Frank Devoke and some 85 other property owners in this same vicinity, making substantially the same basic allegations as in the McGee case, instituted the present action against the defendant claiming damages for injury to their health and property by reason of the defendant's continued operation of these facilities in a wrongful, negligent, harmful, and unlawful manner, thereby causing the emission of a continuous dense and obnoxious smoke, including gases, soot and cinders, with the consequent infiltration of this polluted atmosphere into their homes and resultant injuries to their health, comfort, and homes, the paint and screens thereof being destroyed and the wallpaper, floors, and contents of their homes being damaged, thus constituting the defendant's terminal operations a public and private nuisance. In addition, in their petition is contained the allegation that such operations are not only in violation of the mandate of this court in the McGee case, but also of Ordinance No. 283 of Bossier City, adopted in October 1941, making it unlawful for any railroad to fire any cold steam boiler, steam engine, or locomotive within the corporate limits 'except inside of a roundhouse or other building equipped with a smokestack, smoke eliminator, or dispenser or other device which will prevent the issuance of dense or obnoxious smoke into the atmosphere.'

The defendant, in its answer, admitted that it operates the facilities complained of, consisting of a turntable with spur tracks, as a coaling station and firing point for its western terminal almost continuously, using coal burning engines or locomotives that are refueled and fired on the property, as well as the adoption of the ordinance of Bossier City, but it generally denied all of the other allegations in the petition of the plaintiffs. Shortly after the trial of the case was begun, the defendant filed an amended answer setting up as a special defense 'that the granting of any recovery for damages herein would constitute a taking of defendant's property without due process of law and without adequate compensation paid, in contravention of Article I, Section 2 of the Constitution of the State of Louisiana, and the Fourteenth Amendment to the Constitution of the United States.' At the conclusion of the trial, the defendant pleaded the prescription of one year in bar of any and all claims for damages that might have been suffered more than a year prior to the filing of the suit.

The trial judge overruled the plea of prescription on the ground that the operating cause of the injury was a cintinuous one, giving rise to successive damages, and that prescription could not, therefore, begin to run until the cessation of the alleged cause of the damage. Being of the opinion, also, that aside from a failure to ask for injunctive relief and differences of detail in pleading this case is indistinguishable from the McGee case, its cause of action and defenses being substantially identical, he held that the decision on the merits in the McGee case was decisive of the same issues here involved and he rendered judgment accordingly. In such judgment, with the exception of Mr. and Mrs. Brown, who were awarded damages in the McGee case, and some 10 others who were awarded special damages because they had maintained their residences in the affected zone a shorter period of time, he awarded each plaintiff $350 for mental anguish and inconvenience, computed on the basis of the $250 awarded for this same injury in the McGee case plus $100 for the additional time between the decision in the McGee case in 1942 and the filing of this case in 1944; and he awarded damages for each residence affected in the sum of $300 and for each garage apartment in the sum of $150. Because of voluntary nonsuits entered on behalf of some seven plaintiffs, the awards have no application to them, nor to some three individuals who have died since the suit was instituted. In all, the awards amount to approximately $42,000. The defendant is appealing.

Since the appeal was lodged in this court, on the motion of the Illinois Central Railroad Company, showing that it has acquired the Yazoo & Mississippi Valley Railroad Company, it has been substituted as the defendant.

The matter in controversy here is not without precedent for we find that the defendant's predecessor in title, the Vicksburg, Shreveport & Pacific Railway Company, was ordered by this court to take active measures to prevent the spreading of smoke to an injurious extent toward the homes of the complaining parties in 1910. Tucker v. Vicksburg, S. & P. R. Co., 125 La. 689, 51 So. 689. Presumably the company heeded the mandate of this court for in so far as the record shows the roundhouse in Shreveport, then being used, was continued without further serious complaint, even after it was taken over by the Yazoo & M. V. R. Co., the defendant here. In 1932, because of expanding business, the defendant discontinued the Shreveport terminal and used the Bossier City facilities exclusively to serve the combined needs of the two systems and while no legal action was taken until the McGee case was filed in 1942, it appears that the property owners in the vicinity of this terminal facility were experiencing considerable discomfort and injury to their property and that this has been greatly increased during recent years because of the activity occasioned by the war. In 1944 we affirmed the judgment of the lower court in the McGee case concerning the manner in which these facilities were being operated and directing the defendant to take steps to correct the nuisance thus created. We also affirmed the lower court's award of $500 to each plaintiff, or set of plaintiffs where the wife was joined in the suit, for mental anguish, worry, and inconvenience, and $250 for damage to each of the residences in the area affected. McGee v. Yazoo & M. V. R. Co., supra. The judgment having become final in June of 1944, on December 1, following, the present plaintiffs instituted this suit to recover for damages allegedly sustained by them from the same cause during the same period of time covered by the McGee case, and for the additional time intervening between the institution of the McGee case and its final decision by the Supreme Court.

Aside from the fact that no injunctive relief is sought here, we think, as did the trial judge, that this case is indistinguishable from the McGee case except for some details in pleading and conclude, as he did, that the evidence clearly establishes the claim of the plaintiffs that they have suffered substantial injury to their property and that their enjoyment thereof has been greatly hampered as the result of the dense smoke, soot, cinders, and fly ash dispersed by the defendant in the operation of its terminal facilities in the open, contrary to the ordinance of the City of Bossier. We do not deem it necessary to give a detailed analysis of the evidence on this phase of the case. It could but serve to unduly lengthen the opinion and obscure the issues. Suffice it to say that most of the testimony offered by the defendant is but a duplication of that offered during the trial of the McGee case.

Counsel for the defendant-appellant, however, contend that neither in common law jurisdictions nor under Louisiana law can there be any recovery without actionable negligence for injuries sustained by reason of the operation of a lawful business and that inasmuch as their facilities at Bossier City are being operated as a necessary part of the defendant's legally constituted railroad system with the most improved methods...