Caldwell v. Knox Concrete Products, Inc.

• Citation: 391 S.W.2d 5,54 Tenn.App. 393
• Parties: Ethel R. CALDWELL v. KNOX CONCRETE PRODUCTS, INC.
• Decision Date: 05 August 1964
• Court: Tennessee Court of Appeals

Page 5

391 S.W.2d 5

54 Tenn.App. 393

Ethel R. CALDWELL v. KNOX CONCRETE PRODUCTS, INC.

Court of Appeals of Tennessee, Eastern Section.

Aug. 5, 1964.

Certiorari Denied by Supreme Court March 2, 1965.

Hodges, Doughty & Carson and John P. Davis, Jr., Knoxville, for plaintiff in error, Ethel R. Caldwell.

Donaldson, Montgomery & Kennerly, Knoxville, for defendant in error, Knox Concrete Products, Inc.

COOPER, Judge.

This appeal is from the action of the trial judge in directing a verdict for the defendant, Knox Concrete Products, Inc., in an action brought by Ethel R. Caldwell to recover property damage allegedly resulting from the defendant's manufacturing operations.

The plaintiff is the owner and operator of the Colonial Tourist Court on Kingston Pike in Knoxville, Tennessee. The defendant owns and operates a concrete products plant on the property adjoining plaintiff's motel. In June, 1957, the defendant expanded its operations and constructed facilities for the making of concrete beams near the property line between plaintiff's and defendant's properties.

In her declaration, the plaintiff averred that the noise from the expanded operations was of such nature and intensity that it materially interfered with the use and enjoyment of her property as a home and a motel and constituted an actionable nuisance.

The defendant filed a plea of not guilty, and specially plead the three year statute of limitations as a bar to the plaintiff's action.

It was conceded by the plaintiff during the trial that she could recover only if the noise complained of constituted a temporary nuisance, and that her damages, if any, would be limited to those occurring after March 14, 1960, since suit was not filed until March 14, 1963.

On motion of the defendant made at the conclusion of all the evidence, the Court peremptorily instructed the jury to return a verdict in favor of the defendant on the ground that there was no evidence upon which a jury verdict in favor of the plaintiff could be predicated. In doing so, the trial judge stated, among other things, that:

'As a matter of law this is shown to be, if a nuisance at all, a permanent nuisance, and more than three years having elapsed since it began * * * [June, 1957] * * * this case is barred by the Statute of Limitations of three years, and that the plaintiff cannot recover.'

Plaintiff filed a motion for new trial and, when it was overruled, appealed assigning the court's action as error.

The record shows that the motel, now owned by the plaintiff was constructed in the early 1930's. Plaintiff bought the motel property in 1953 and operated the motel with increasing success through 1957, catering to the commercial trade and those tourists who sought inexpensive but clean accommodations. Thereafter, the receipts from the business showed a marked decrease yearly until 1963, when plaintiff closed the motel.

The defendant company began operations in 1943 on a nine acre tract of land adjacent to plaintiff's motel. The tract was zoned for industrial uses, and was in the midst of commercial activity, viz., restaurants with drive-in service, liquor stores, and a miniature golf course, many of which operated late at night.

In 1957 defendant expanded its plant and constructed three beam beds and two prestress beam beds adjacent to plaintiff's motel. These beds are used to form concrete beams and they range in length from 140 feet to 200 feet. A building was constructed at the northern end of the beds to house materials and a heater with a pump attachment to circulate hot oil through the beam beds to aid in curing the concrete.

There is considerable noise attendant to the beam and prestress operation. In the normal cycle of operations, which began at 7:00 A.M. prior to the filing of this suit, one of the beds is stripped and poured in the morning and the other in the afternoon, each such process requiring approximately three and one-half to four hours for completion. In stripping a bed, defendant's employes are required to remove metal bulkheads from the ends of the completed beams. This is done by hammering--metal on metal--for approximately 20 minutes. The beams are then removed by use of mechanical carriers referred to as Karry Kranes. After the bed is stripped, reinforcing steel is installed for the next pour. The Karry Kranes are then used to bring the cement to the forms where vibrators (some of which are electric and some of which use a 2 1/2 horsepower gasoline motor) are used to compact the concrete intermittently during the pouring process that requires one to one and one-half hours. After the concrete has been allowed to set for two or three hours, a heater is turned on to circulate hot oil through the forms for the purpose of properly completing the curing process. The gas-fired heater and the pump attachment are located in an open building and operate intermittently through most of each night following the pouring of the concrete beams.

Plaintiff testified that the noises from these operations prevented her from renting her motel rooms, and caused her to lose patrons of many years standing.

Several of these patrons testified that their rest was disturbed by the noises, particularly those in the early morning hours, and that they sought accommodations elsewhere.

The general manager of the defendant's plant described the manufacturing operation in detail, and testified that the methods used were those generally used in the trade, and that while noise, of necessity, accompanied the manufacturing operations, it was not excessive. On cross-examination, the general manager testified that the noise could be reduced.

(1) by using a steel bar to loosen cargo in the railroad cars rather than by vibrating the car or by beating the side of the car with a sledge hammer;

(2) by cleaning concrete from the beam bed area by hand rather than by use of bulldozers;

(3) by locating the heater and pump away from the curing beds and plaintiff's motel;

(4) by freeing the bulkheads used in the beam beds by the use of a steel bar rather than by hammering;

(5) by unloading the steel used in the beam beds at a location away from plaintiff's motel; and

(6) by using electric vibrators in place of the gasoline propelled vibrators on the beam beds.

The general manager insisted, however, that the reduction of the noise would not be economical, and would impair the defendant's position in a highly competitive market.

The general manager further testified that after the present suit was filed, the time of commencement of work in the concrete beam area was changed from 7:00 A.M. to 8:00 A.M.

Other employes of the defendant company were called to testify concerning the methods used by defendant in its manufacturing operations, and to testify that the plaintiff had not complained of the noise prior to filing suit, except as to the noise from a warning whistle on the oil pump attachment, and that this had been corrected by the substitution of a warning light.

The defendant also introduced in evidence the testimony of Mr. R. J. Coker, an industrial sound engineer, and Mr. J. W. Barnes. Mr. Coker, who conducted soundmeter tests on plaintiff's property at the request of the defendant, testified that the operation of the heater and pump at night caused a measurable sound difference inside only two of the plaintiff's motel units, that the slight noise was not objectionable and was cancelled out entirely when the motel air conditioner was operating. Mr. Coker also testified that while the sound tests made during the daytime operations of the defendant's plant showed that the plant noises were discernible in the motel units, the operation of the plant without the use of vibrators was not objectionable at all and that the operation of the air conditioners cancelled out most of the vibrator noise. Mr. Coker further testified that the tests showed that the noise caused by a passing train or by starting a room air conditioner was louder than the noise resulting from the daytime operation of the defendant's plant.

Mr. J. W. Barnes, a former patron of plaintiff's motel, testified that the noises from defendant's plant operations did not disturb his rest while he occupied a cabin near the prestress beam area.

A nuisance has been defined as anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable. Adams v. Hamilton Carhartt Overall Co., 293 Ky. 443, 169 S.W.2d 294. In City of Nashville v. Nevin, 12 Tenn.App. 336 It was said that a nuisance extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property. See also Williams v. Cross, 16 Tenn.App. 454, 459, 65 S.W.2d 198.

What is a reasonable use of one's property and whether a particular use is an unreasonable invasion of another's use and enjoyment of his property cannot be determined by exact rules, but must necessarily depend upon the circumstances of each case, such as locality and the character of the surroundings, the nature, utility and social value of the use, the extent and nature of the harm involved, the nature, utility and social value of the use or enjoyment invaded, and the like. See Clinic & Hospital v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384, 23 A.L.R.2d 1278; Restatement, Torts, Secs. 822, 831, pp. 214, 265.

Generally, noise is not a nuisance per se for it is recognized that no one is entitled to absolute quiet in the enjoyment of his property, but may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells or has his business. Collins v. Wayne Iron Works, 227 Pa. 326, 76 A. 24, 19 Ann.Cas. 991. See also Hannum v. Gruber, 346 Pa. 417, 31 A.2d 99; 66 C.J.S. Nuisances § 22a. However, noise may constitute a nuisance in fact even though it arises from the operation of a...