Bower v. Hog Builders, Inc.

• Decision Date: 14 December 1970
• Docket Number: No. 2,No. 54736,54736,2
• Citation: 461 S.W.2d 784
• Parties: Glenn and Doris BOWER, Frank and Minnie Bower, Respondents, v. HOG BUILDERS, INC., Appellant
• Court: Missouri Supreme Court

Page 784

461 S.W.2d 784

Glenn and Doris BOWER, Frank and Minnie Bower, Respondents, v. HOG BUILDERS, INC., Appellant.

No. 54736.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 11, 1971.

Strop, Watkins, Roberts & Hale, Dan Hale, Lynn K. Ballew, St. Joseph, for respondents James W. Jeans, Kansas City, of counsel.

Sprague, Wilcox & Houts, St. Joseph, for appellant.

PRITCHARD, Commissioner.

Plaintiffs owned farms to the south of and adjoining defendant's 139-acre farm in the northern portion of Clinton County, Missouri, which it used for breeding, raising and the sale of hogs. All four plaintiffs joined in suing defendant because of a nuisance it was alleged to have created by causing noxious odors, depositing large amounts of waste in open lagoons and causing them to discharge onto plaintiffs' properties, placing hog pens and lagoons on its land so that surface waters were accumulated and after contamination unreasonably discharged the waters onto plaintiff's lands. All four plaintiffs joined in Count I for injunction, but that count was denied by the court and is not here in issue. Glenn and Doris Bower sued on Count II for actual and punitive damages, which resulted in a jury verdict for them of $34,200 actual and $60,000 punitive damages. Under Count III, Frank and Minnie Bower were awarded $12,000 actual and $30,000 punitive damages by the jury.

Ten points are made by appellant, the first of which attacks the submissibility of plaintiffs' case; four points relate to claimed erroneous giving of instructions; one presents as error in permitting questions on voir dire examination relating to other (affilated to plaintiff) corporations; one, with four subpoints, to the admission and exclusion of evidence; one, with two subpoints, relates to final argument; one claims error of the court in misstating the law in the jury's presence; and the final point is that 'The verdict is against the weight of the evidence and is so excessive, both for actual and punitive damages, that it had to result from bias and prejudice of the jury.'

The two farms of the plaintiffs are approximately 13 miles east of St. Joseph, Missouri, and are located on the south side of an east-west graveled county road. The farm of Glenn and Doris, adjoining that of Glenn's father, was bought by Glenn about 20 years ago, and the buildings were thereafter improved by him. Prior to the time defendant came there, the air and streams were pure and there was no bad odor in the air. Glenn then had no trouble with rats, and there was just the normal amount of country flies. He had a good clear water pond in which his nephews could swim and fish, and from which the livestock could drink. He had another older pond which also had fish in it. The house was equipped with a patio where Glenn and Doris entertained their friends many times. They had no trouble drinking their water, it being good soft water. Glenn's occupation most of his married life was that of a house building contractor in the St. Joseph area and around his home.

Defendant established its hog breeding operation in the first part of 1965, the first hog houses being located on the northern part of its property. Glenn's farm and that of defendant were situated on gentle rolling farm country. Glenn was on the downhill slope from the hog farm which had a (northwest-southeast) ridge on it, from which the water drained in all directions, and the fall of the land to the southwest was downhill across Glenn's farm and also that of his father to his west. A 'cesspool' was built on the south slope of the hog farm before a second group of hog houses was built. Glenn observed the lagoon overflowing and running down the stream. At that time Glenn started conferring with the health department, the water pollution people and the manager of the hog farm. Thereafter, four other buildings were constructed on the hog farm, and defendant started raising hogs in them and filling the lagoon. According to Glenn, who had been in the buildings, they were near 30 feet wide and 130 feet long. There was a cement floor and a pit in the middle with a slat floor over it. At least 40 pens were placed on each side of the pit. The sides of the buildings had cement blocks for 3 or 4 feet, above which was car siding. Flap doors were provided which coudl be raised to let the odor out. The roofs were metal with four ventilators on each. The trough in the middle of the buildings, containing 'manure and stink and waste feed and urine and water,' was near 8 feet wide and 5 feet deep. The hogs were fed by means of an overhead elevator which spilled feed out on the floor, and there were drinking cups on the inside of the pens. The holding tanks were connected to a ground pipe which dumped into the lagoon.

The lagoon north of Glenn's home was constructed after he saw the west (first) lagoon (which did not drain onto his property) overflowing in 1965 from the overflow pipe. Glenn reported this overflow to the State Health Department and to Mr. Jack Smith of the Water Pollution Board. Mr. Smith observed a small overflow to the notheast from a lagoon, and suggested to defendant's manager that it be stopped. As the weeks went along the second lagoon with manure, stink, waste and rotten feed flushed from the pits of four buildings, 'and as days went by it filled up faster than you could imagine, and the day came when over the top it want.' The lagoon was a rectangular shape about 120 feet by 160 feet, and was about 4 feet deep. It filled in the latter part of 1966 and went over the top of the dam early in 1967. Glenn complained, and the legoon was raised a little. In January, 1968, the plug blew out of the drain pipe and flooded Glenn's pond after which defendant built up the side of the lagoon and covered up the pipe. After the lagoon filled up in the summer of 1967, the black manure came over the top of the dam very often, and on following the flow Glenn found it ran in a southwesterly direction down a water ditch and on his property about a half mile.

Early in 1968, defendant constructed another legoon above the second one, which filled to rim capacity, then ran over the top of the dam and continually seeped from its west side, taking the same course as the lagoon below it. In January, 1969, defendant constructed a third lagoon in the same (east) area. Glenn saw people on the hog farm using a power-driven pump and hose pumping out of the lower lagoon over the dam, after which the 'crud' followed the course of the natural drainage down the north ditch of the road to Glenn's driveway.

Glenn identified Plaintiffs' Exhibit 5, a photograph looking north across the road from his place, showing a water ditch filled with erosion. Other exhibits show the ditch and the south end of the tubing draining from the hog farm, and although in black and white show accumulated, flowing sludge, and according to Glenn they show manure and debris. On the north side of defendant's property is its water supply pond which has a diversion terrace to keep the holding pens from draining therein. No such diversion terraces were constructed on the three southeast lagoons to keep the runoff from coming onto Glenn's property.

As to the odor, Glenn testified 'It is the most stinking, rotten, putrid, nauseating odor I have ever smelled bar none.' It is there continually. His home was not air conditioned, and the odor was in the bedclothes, closets, drawers, car, barn and the shop. The odor and pollution of the vicinity upset the high school life of Glenn's daughter, Donna Denise. He noticed a difference in his drinking water, and he and his father have been overrun with rats since the hogs came. The number of flies seemed greater, and Glenn saw a lot of the big, green blow flies. Glenn's friends, as they would go by the road by the edge of the lagoons, would salute him by holding their noses. On January 18, 1968, he had entertained friends, one couple (the Kerns) departing about 11:00 p.m. They returned shortly and Glenn accompanied them down his driveway. He there saw the 'filthiest, stinkenest, overflow out of a septic tank' he had ever witnessed. He followed it up his lane for 200 feet, and up the north side of the road, stepped on the hog farm property to the outlet of the septic tank. Glenn identified a color photograph showing the outlet, which he testified was a piece of fiber pipe 6 inches in diameter reduced to a 4 inch 90 degree (vertical) L with a piece of burlap pushed in the end of the L. The overflow pipe was located near the east end of the dam. When he went to the dam he saw a piece of plyboard lying on the side of it over the flow of black liquid. The plyboard was staked down at its top, and on its being raised Glenn saw the pipe plugs lying there with the 4-inch pipe adaptor. Other color photographs were taken by Kerns of that scene, and others were taken the next morning after defendant had shut off the flow. Glenn called his neighbors, James White and John Pipes, the conservation agent, Mr. Rice, and the sheriff's department. As a result of the flow, in about eight hours Glenn's pond was filled and the flow went on into Jordan Creek.

In January, 1967, Glenn took pictures of his west pond showing dead fish. In July, 1968, there were catfish killed in the other pond in front of Glenn's house. Three photographs show a decomposed hog which was lying on the hog farm right across from Glenn's property in the summer of 1967. The waste also killed vegetation on the north side of the road. In the last several months (before trial) the liquid inside the cesspools was almost blood red. Glenn's cattle, when he had them at home, would not drink from his pond or his father's pond. The ditch on the north side of the road was 10 feet wide at its bottom and 3 to 4 feet deep prior to the operation of the hog farm, and thereafter it became level with the road 95% of the...