Buckeye Cotton Oil Co. v. Ragland

• Decision Date: 22 February 1926
• Docket Number: No. 4536.,4536.
• Citation: 11 F.2d 231
• Parties: BUCKEYE COTTON OIL CO. v. RAGLAND et al.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.2d 231 (1926)

BUCKEYE COTTON OIL CO. v. RAGLAND et al.

No. 4536.

Circuit Court of Appeals, Fifth Circuit.

January 7, 1926.

Rehearing Denied February 22, 1926.

Wm. H. Watkins, of Jackson, Miss. (Watkins, Watkins & Eager, of Jackson, Miss., and Dinsmore, Shohl & Sawyer, of Cincinnati, Ohio, on the brief), for appellant.

S. D. Redmond and Virgil Howie, both of Jackson, Miss. (Howie & Howie, of Jackson, Miss., on the brief), for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

In September, 1923, Mary Ragland filed her bill of complaint against the Buckeye Cotton Oil Company, in which she averred that she was the owner of a lot, upon which she had resided for 13 years, in Jackson, Miss., on the south side of Monument street; that on the north side of the street, immediately opposite her home, and about 40 feet away, defendant company had and operated a cotton oil mill and delinting plant in such manner as to cause dirt, dust, lint, and cotton fiber to be thrown and to fall on her lot and into her house, to her damage and to the injury of her health. Mildred Ross, a minor, by Mary Ragland, her next friend and foster mother, at the same time filed a bill in which she averred that she lived in the home of Mary Ragland, and that her health had become permanently impaired by reason of the method of operations carried on at defendant's plant. Both bills prayed for injunction and damages, as well as for any appropriate general or special relief; and were consolidated for trial. On November 10, 1923, after a personal visit to the premises, the district judge granted a temporary injunction against operations as conducted at the oil mill, but refused to interfere with the delinting plant, because he found from a personal inspection that the latter was not in operation, but had been dismantled.

The trial resulted in separate final decrees from which the Buckeye Cotton Oil Company appeals. The decree in Mary Ragland's case enjoins defendant from operating its oil mill in such manner as to throw dust, dirt, or lint in appreciable quantities on plaintiff's premises, and awards to plaintiff $150 as damages to her real estate, and $1,500 as actual damages for personal discomfort, physical pain, and suffering sustained since March 1, 1920, the date of a former judgment for $300 in her favor in a similar suit against the same defendant. The other decree awards to Mildred Ross $5,000 as damages for personal discomfort, physical pain and suffering, and injury to her health; but injunction was denied as unnecessary, because injunction had been issued in the case of Mary Ragland, the owner of the property.

The evidence was taken before a commissioner who did not make any findings of fact. The district judge ordered that the testimony of Mary Ragland be sent up on this appeal in question and answer form, but that all other testimony included at the request of counsel be set forth in strict compliance with paragraph (b) of Equity Rule 75. These instructions were ignored, and the statement of the evidence is nothing more than a transcript, containing more than 900 printed pages of stenographic notes, which purport to contain the testimony of all the witnesses in question and answer form. It also contains, as might be expected, a mass of immaterial matter such as preliminary questions and answers, repetitions, comments of counsel, and colloquies between them and the commissioner. We are now invited to separate the wheat from the chaff. We are expected to select out the testimony that is material in order that we may determine whether assignments of error based upon it are well taken. It is true that in the order allowing an appeal it is required that, "where the testimony of any witness, or witnesses, is included in the præcipe of counsel on either side, the testimony of the witness, or witnesses, be transcribed in its entirety." However, it hardly can be contended that this order was intended to displace the previous requirement, which meant that the testimony should be stated in a simple, concise, and narrative form, and in no event did it contemplate an inclusion in the transcript of anything but testimony.

We are of opinion that equity rule 75 does not contemplate that the trial court will order all the testimony in a case sent up in question and answer form. If particular answers of a witness are subject to different interpretations, the questions which elicited such answers frequently aid in determining which interpretation is correct. For that reason the rule provides, by way of exception, "that if either party desires it, and the court or judge so directs, any part of the testimony shall be reproduced in the exact words of the witness." That rule was designed to prevent the imposition of such a record as this upon an appellate court. Newton v. Consolidated Gas Co., 42 S. Ct. 264, 258 U. S. 165, 66 L. Ed. 538; Houston v. Telephone Co., 42 S. Ct. 486, 259 U. S. 318, 66 L. Ed. 961. It would not serve its purpose if it could be ignored at pleasure, and be supplanted by the easier, though more expensive, method of printing everything that is said by anybody connected with the case during the taking of testimony. We will not enforce the rule in this case, but only for the reason that counsel might have construed the order allowing the appeal to authorize the record in its present shape.

Defendant's cotton oil mill has been located upon its present site since 1908. It is not situated in a strictly manufacturing district. Mary Ragland moved into her present residence in 1910, taking with her Mildred Ross, who at that time was about 15 months old. They have resided at the same place ever since. From some time not definitely fixed by the testimony, perhaps from the beginning, defendant has used what is called the "cyclone system" at its oil mill. Lint from cotton seed is taken from the gin to what is called a "collector" or "cyclone" through a large metal tube or conveyor about 6 feet in diameter by means of a fan in the conveyor midway between the gin and the collector. This fan is about 70 inches in diameter and is propelled at from 500 to 600 revolutions a minute. The lint is forced by the suction of air from the gin to the fan and is blown from the fan to the collector, where it is intended that it shall drop through an opening at the bottom. An opening is provided at the top for the escape of air. When the opening at the bottom of the collector is choked up, the fan forces the lint out through the top. Mary Ragland testified that lint and lint dust are blown over her yard and into her house, during the season of the year in which the mill is operated, continuously day and night, and that the dust is so fine that it gets into her house, onto her clothing, and into her food even when the doors and windows are closed. She claims that this condition has existed to some extent since 1910, and...