Bell v. Sediment Removers, Inc.

• Decision Date: 12 December 1985
• Docket Number: No. 84-923,84-923
• Citation: 479 So.2d 1078
• Parties: E.A. BELL, Plaintiff-Appellant-Appellee, v. SEDIMENT REMOVERS, INC. and L.F. Reeves d/b/a Reco Construction Company, Defendants-Appellees-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1078

479 So.2d 1078

E.A. BELL, Plaintiff-Appellant-Appellee, v. SEDIMENT REMOVERS, INC. and L.F. Reeves d/b/a Reco

Construction Company, Defendants-Appellees-Appellants.

No. 84-923.

Court of Appeal of Louisiana,

Third Circuit.

Dec. 12, 1985.

Brame, Bergstedt and Brame, Joe A. Brame, Lake Charles, for defendant-appellant-appellee.

R. Keith Findley, Lake Charles, for defendants-appellees-appellants.

Collings & Collings, R. William Collings, Lake Charles, for plaintiff-appellee-appellant.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Jr., J. Fred Patin, Robert L. Dow, Lake Charles, Gachassin and Hunter, Nicholas J. Sigur, LaFayette, Leithead, Scott, Boudreau, Myrick & Richard, Edward Myrick, Lake Charles, for defendants-appellees.

Before DOMENGEAUX, STOKER and KNOLL, JJ.

KNOLL, Judge.

This is a trespass action. Edwin A. Bell (hereafter Bell) sued Firestone Tire and Rubber Company (hereafter Firestone), the producer of certain non-toxic industrial waste material, Sediment Removers, Inc. (hereafter Sediment Removers), the holder of a contract with Firestone to remove the waste material, and L.F. Reeves d/b/a Reco Construction Company (hereafter Reeves), the hauler of the Firestone waste for Sediment Removers to a site Reeves and Bell co-own. Firestone and Sediment Removers filed a third party claim against American Employers Insurance Company (hereafter American Employers) claiming American Employers provided them with comprehensive general liability coverage, and owed them attorney's fees for failing to provide a defense. Sediment Removers also filed a third party demand against Reeves seeking indemnity and contribution. The trial court dismissed Firestone on a motion for directed verdict, and at the conclusion of the trial, held Reeves, American Employers and Sediment Removers solidarily liable to Bell for $12,500 damages, and awarded Sediment Removers $5000 attorney's fees for American Employers' failure to defend. Only Bell, Sediment Removers, and American Employers appeal, therefore, the judgment against L.F. Reeves d/b/a Reco Construction Company is final. The issues presented are: (1) whether Bell proved its damages by a preponderance of the evidence; (2) whether Firestone was improperly dismissed from the lawsuit; (3) whether fault or negligence was shown on the part of Sediment Removers; (4) whether there was a legal relationship between Reeves and Sediment Removers; (5) whether American Employers provided coverage, if any was owed, if the relationship between Reeves and Sediment Removers was either that of independent contractor or joint venturer; (6) whether American Employers' insurance policy excluded coverage to Sediment Removers under its pollution exclusion; (7) whether American Employers owed Sediment Removers a duty to defend; and (8) whether Bell's damage award should be increased. We reverse the trial court's award of damages to Bell, finding he failed to prove damages by a preponderance of the evidence, and that American Employers owed a duty to defend Sediment Removers, therefore, we pretermit discussion of all other issues.

FACTS

Bell and Reeves own adjacent properties in Calcasieu Parish on which a four acre borrow pit traverses a common boundary. There is nothing in the pit to prevent waste from migrating from one side to the other. Prior to Bell's purchase of this property, the pit had been used for the disposal of various types of waste material, including the use of it as a ward dump. Waste material migrated across the pond prior to this trespass action.

In 1975 Firestone entertained bids for the removal of non-toxic, non-hazardous waste from its plant site and awarded the contract to Sediment Removers for disposal of the waste material in a landfill operation. Sediment Removers in turn contracted with Reeves for transportation of the waste material to the pit co-owned by Reeves and Bell. When Reeves began disposing the industrial waste in the co-owned pit, Bell obtained an injunction because of the violation of a servitude of passage granted Bell and Reeves under a prior contract. At the time Reeves and Sediment Removers halted their disposal activity 8,069 cubic feet of waste had been deposited. The evidence preponderates that the dumping was on Reeves's side of the pit, but without the permission of Bell, and an undetermined amount of waste material (composed of 80% water and 20% sludge) settled on Bell's side of the pit.

DAMAGES

Firestone, Sediment Removers and American Employers contend that even though there may have been a technical trespass on Bell's portion of the pit, Bell failed to prove that he was damaged by the trespass. We agree.

Plaintiff must prove by a preponderance of the evidence the damages caused by the tortfeasor. This burden of proof may be met by either direct or circumstantial evidence. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows that the facts or causation sought to be proved is more probable than not. Hoffpauir v. State Farm Mut. Auto Ins. Co., 427 So.2d 560 (La.App. 3rd Cir.1983), writ denied, 435 So.2d 449 (La.1983). In a trespass action it is encumbent upon plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass. Grandeson v. International Harvester Credit Corp., 223 La. 504, 66 So.2d 317 (1953). A plaintiff who is unable to substantiate his claim for damages in a trespass action by a preponderance of the evidence is due no damages. Meadors v. Cravy, 165 So.2d 546 (La.App. 2nd Cir.1964); Central Louisiana Electric Co. v. Mire, 140 So.2d 467 (La.App. 1st Cir.1962); Guidry v. Matherne, 12 So.2d 19 (La.App. 1st Cir.1943); Thomas v. Philip Werlein, Limited, 181 La. 104, 158 So. 635 (1935).

The trial court awarded Bell $2500 for mental anguish he suffered as the result of bringing legal action to halt the dumping of Firestone's waste, and for a reduction of his property value. We disagree. Mental anguish does not result of necessity from a trespass or the encroachment on one's property; even though it may be compensatory, it must be proven with sufficient evidence. McKowen v. McCraine, 244 So.2d 45 (La.App. 1st Cir.1971). The record is void of any evidence to support this award.

The trial court also awarded Bell $10,000 to compensate him for the depreciation of his land's value, the cost of removing the sludge from his property, and for any unjust enrichment for disposal fees paid to Reeves and Sediment Removers for disposal of waste on Bell's property.

Bell proved a technical trespass of Firestone's sludge on to his property, i.e., the unlawful physical invasion of his property. See Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir.1975). However, he failed to prove that his property was damaged by the physical...