American Smelting & Refining Co. v. Riverside Dairy & Stock Farm

• Decision Date: 14 October 1916
• Docket Number: 4635.
• Citation: 236 F. 510
• Parties: AMERICAN SMELTING & REFINING CO. v. RIVERSIDE DAIRY & STOCK FARM.
• Court: U.S. Court of Appeals — Eighth Circuit

236 F. 510

AMERICAN SMELTING & REFINING CO. v. RIVERSIDE DAIRY & STOCK FARM.

No. 4635.

United States Court of Appeals, Eighth Circuit.

October 14, 1916

F. H Brownell, of New York City, and Richards & Richards, Bagley &amp Ashton, and William M. McCrea, all of Salt Lake City, Utah for plaintiff in error.

Mathonihah Thomas and O. P. Soule, both of Salt Lake City, Utah, for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and VAN VALKENBURGH District Judge.

VAN VALKENBURGH, District Judge.

The writ of error in this action is prosecuted from a judgment rendered in favor of defendant in error, hereinafter called the plaintiff, against the plaintiff in error, hereinafter designated the defendant, in the District Court of the United States within and for the district of Utah, upon a complaint in an action for damages, claimed to have been suffered by plaintiff in the manner following:

The complaint recites that the plaintiff and defendant are corporations; that the plaintiff was the owner, in possession, and entitled to the possession of real property situated in Salt Lake county, state of Utah; that since about December 1, 1911, the plaintiff was engaged in carrying on and conducting a dairy and stock farm upon said premises that since that time, and for some years prior thereto, the defendant was the owner of and engaged in the operation of a smelter, situated about 2 1/2 miles southeasterly of plaintiff's lands, and that by reason of the operation of said smelter large quantities of smoke, gases, fumes, and particles of a poisonous and deleterious character were emitted from said smelter, and were injurious to and destructive of all forms of animal and vegetable life, and were carried over and upon the premises of the plaintiff, thereby causing the crops upon plaintiff's premises to be less abundant, and thereby rendering such crops poisonous, unwholesome, and unfit to be eaten by animals; that by reason thereof the plaintiff suffered injury to and destruction of crops growing upon said premises; and that by inhaling said poisonous substances, and by eating the hay and other products grown upon the premises, and so impregnated with said poisonous elements, the horses and cattle of the plaintiff became unhealthy, and some of them permanently injured. The complaint further recites injuries to the crops, alleged to have been sustained during the years 1912 and 1913, and damage by reason of the death of horses, cows, and calves, and permanent injuries to cows and bulls. By its answer the defendant substantially traversed these allegations of the complaint, and denied responsibility for the injuries and damages charged to have been sustained by the plaintiff. Upon the issues joined, the case was tried before a jury, and judgment was rendered upon a verdict in favor of the plaintiff in the sum of $3,000. The foregoing statement of facts is taken, without material change, from the brief of plaintiff in error, defendant below, and adopted as correct by counsel for defendant in error. The consideration of the case is still further simplified by this additional statement by counsel for plaintiff in error:

'For the purpose of the presentation of this writ of error it would serve no useful purpose at this time to attempt a more complete statement of the facts, for the reason that such of the facts and of the evidence as is important will be set forth in discussing the several errors here relied upon. Suffice it to say that the plaintiff sought to establish, and introduced evidence tending to show, that the defendant in its operations did emit poisonous substances that were carried over and upon plaintiff's premises, inflicting the injury and causing the damage set forth in its complaint, and that the defendant introduced evidence tending to show that in its operations the defendant did not emit any substances during the times mentioned in the complaint that could or did cause any injury or damage whatsoever to the plaintiff. Upon these questions all that can be said is that there was a conflict in the evidence, and it is not the purpose of the defendant in the prosecution of this writ to ask this court to review them.'

We come, then, directly to the specifications of error assigned. They are, substantially, three in number: (1) The refusal of defendant's requested instruction No. 14, by which the question of the proper measure of damage to growing crops was sought to be explained to the jury. (2) The refusal of instructions 3 to 13, inclusive, which sought to submit to the jury the question of whether, in a case of this nature, the plaintiff was required to minimize its damage upon becoming aware that such damage was threatened. (3) The insufficiency of the evidence to justify submitting to the jury the question of damages to certain crops during certain years. These three specifications will be considered in the order named.

Defendant's request No. 14 reads as follows:

'Now as to certain of these matters the law furnishes a specific rule as to the measure of damage. The ordinary rule as to injury to personal property is that the damage is measured by the depreciation in market value of the property due to the wrongful act, estimated as of the time and place of the injury. But when you apply this rule to growing crops, its application is impossible; a growing crop, one that has not matured, has no market value, so that we must apply the rule in a modified sense. Regard must be had to the time when the crop would first have a market value, and the market value at that time and in the nearest place must be estimated. Practically, to apply the rule, you must consider what was the crop that the plaintiff would have raised if the crop had been uninjured by smelter smoke; ascertain the market value of that crop at the nearest time and place when it had a market value, and from that subtract the market value of the crop actually raised. Now the difference would not constitute the damage, for this reason: That certain expense and labor would have been saved the plaintiff by reason of this very wrong. For instance, oats, corn, beets, alfalfa, and pasture that were not raised would not have to be harvested or marketed, and any crop that was not raised would not have to be marketed or gathered. So that, from this difference to which I have called your attention, you must further subtract the expense which the plaintiff was saved. The remainder would be the plaintiff's total damage, not the damage suffered by reason of the smelter smoke and fumes, so that it would still be necessary for you to determine the proportion of this damage that was inflicted by this defendant.' The court refused this instruction, and upon the question of the proper measure of damage to growing crops charged the jury as follows:

'If you find that the operations of the defendant in fact injured those crops, as claimed, you should find a verdict for the amount of such recovery, measured by the depreciation in the market value of crops injured by reason of the injury inflicted by the defendant, estimated as of the time and place of the injury.'

This instruction, requested by plaintiff in error, is a sufficiently correct statement of the manner of applying the rule upon the question of the proper measure of damage to growing crops, and either it or some substantial equivalent should have been given to the...