Champa v. Washington Compressed Gas Co.

• Decision Date: 22 December 1927
• Docket Number: 20850.
• Citation: 262 P. 228,146 Wash. 190
• Parties: CHAMPA et ux. v. WASHINGTON COMPRESSED GAS CO.
• Court: Washington Supreme Court

262 P. 228

146 Wash. 190

CHAMPA et ux. v. WASHINGTON COMPRESSED GAS CO.

No. 20850.

Supreme Court of Washington

December 22, 1927

Department 2.

Appeal from Superior Court, King County; Moriarty, Judge.

Action by Louis Champa and wife against the Washington Compressed Gas Company, a corporation. Judgment was for plaintiffs in an unsatisfactory amount, and, from an order granting their motion for a new trial, defendant appeals. Order affirmed.

Battle, Hulbert & Helsell, of Seattle, for appellant.

Stanley J. Padden and George F. Ward, both of Seattle, for respondents.

HOLCOMB J.

This is an action for damages for the alleged maintenance of a private, permanent nuisance, resulting, in the last trial, in a verdict of $500 in favor of respondents. A previous trial had resulted in a verdict in their favor for $2,500, which verdict was set aside, and a new trial granted for error in instructions. The last verdict was set aside by the lower court upon the sole grounds of errors in law in giving instructions Nos. 1, 4, and 5, and in refusing instructions requested by respondents numbered 2, 3, and 8.

The sole error assigned by appellant is in granting the motion of respondents for a new trial.

The complaint of respondents is framed upon the theory of recovery of damages sustained, in one action, from the maintenance of the nuisance, and not for equitable relief. They allege in their complaint that appellant has erected directly across the alley from their residence, which had been established by them as a residence theretofore, a manufacturing plant where it makes and stores gases, in a district composed principally of residences, and within the corporate limits of the city of Renton, upon ground immediately adjoining that of respondents, and within approximately 100 feet from their house, where appellant built a factory building and several storage tanks, and proceeded to, and now is, manufacturing and storing hydrogen and oxygen. It is alleged that the gases are allowed to escape from the premises, greatly increasing the fire hazard, and endangering the lives of the residents of the neighborhood; that gases, chemicals, and noxious odors are discharged, which spread through the neighborhood; that such gases explode, and that the odors therefrom nauseate the respondent wife, and make her sick and ill; that the gases make it impossible to raise a garden; that the respondent has undergone a severe nervous shock, has suffered constant loss of sleep, has headaches, and has become weak, and has lost weight. It is further alleged that the noisome gases and odors which are given off by the plant of appellant are liable to, and do, explode and exude from appellant's premises with loud detonations, and spread upon and over surrounding property, especially the premises of respondents; that, because of such recurrent explosions and the presence, expulsion and release of explosive gases, chemicals, and substances upon appellant's property, respondents are kept in constant terror of their lives, and in constant fear for their safety and are constantly subjected to sickness, and the comfortable enjoyment of their lives and property and their comfort and repose are especially interfered with.

The prayer is for the permanent depreciation in the value of the home, $4,000; for special damage to fruit trees and garden $500; and for personal injury to Amelia Champa, $5,000; total, $9,500.

Appellant entered a general denial.

While there was considerable conflict in the evidence, many witnesses for respondents testified to the noisome odors coming from the plant of appellant which were never known before the commencement of its operations; that they occurred at irregular intervals and for irregular periods of time of from half an hour to from two to three hours, occasionally; that, whenever the noisome odors were especially strong and for lengthy periods, Mrs. Champa became nauseated and sick, and had to shut the windows of her house. There was also competent evidence that at one time something like an explosion occurred, by which liquids and gases were discharged from a pipe in the plant to the outside, which destroyed six trees, of the value of $300, belonging to respondents, some of the stuff coming in contact with the face of the husband, causing his face to burn and turn red for a time, and some of it falling upon the roof and sides of the house, spotting the discoloring the roof and wall of the house. Appellant's evidence admitted this occurrence, but explained it by telling how a compressor got hot because of bad lubrication, and the foreman, in order to relieve the pressure, shut it down too quickly, and threw open the wrong valve. The result was that, instead of letting the air pressure into the sewer, it was turned into the bottom of the tank containing liquid potash, which was forced in the form of a spray out of the air intake pipe in appellant's plant, causing the spray to fall upon the trees, house, and garden of respondents. It was asserted by the witnesses for appellant that that was an accident, the cause of which had been completely obviated, so that it could never occur again, and, in any event, was not an explosion in any sense of the word.

There was also evidence on behalf of respondents of the damage to the trees, house, and garden, of depreciation in the market value of their property, and the damage to the health of the wife, caused by the presence of the conditions complained of.

Hence the evidence introduced tended to sustain the recovery sought by respondents, viz. (1) The actual damage caused by the explosion that did occur; (2) the depreciation in the market value of respondents' property, caused by the conditions complained of; and (3) sickness, suffering, mental anguish, and bodily infirmities of Amelia Champa caused by the existence of the alleged nuisance.

Instruction No. 1, given by the trial court, the giving of which was one of the reasons for granting a new trial, reads as follows:

'For the purpose of this case a nuisance can be committed in this way:

'(1) To use any building or other place for the exercise of any trade or manufacture which, by occasioning obnoxious exhalations or offensive smells, becomes injurious to health or offensive to the senses or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life and property, is a nuisance. No matter how modern nor how scientific the way operations may be carried on, if such becomes a nuisance as I have defined it, then the operator will be liable to the party whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.'

Instruction No. 2, given by the court, is as follows:

'I further instruct you that under the statutes of this state a nuisance is defined as follows:

"Nuisance consists in unlawfully doing an act or omitting to perform an act, which act or omission either annoys, injures, or endangers the comfort, repose, health, or safety of others; or in any way renders other persons insecure in life or in the use of property.'

'Our statutes further provide:

'Whatever is injurious to health or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and is a subject for an action for damages.'

No fault is found as to instruction No. 2 above given, but instruction No. 5, given by the court, is as follows:

'It is conceded that the plaintiffs' residence was erected before the time defendant commenced its manufacture. Therefore, if the defendant, in the carrying on of its operations, is occasioning obnoxious exhalations or offensive smells, injurious to the health or offensive to the senses, or which constitute an obstruction to the free use by the plaintiffs of their property to such an extent as essentially to interfere with their comfortable enjoyment of life or property, then it becomes a nuisance as a matter of fact. You must, therefore, determine from the evidence whether or not such facts exist as to constitute the defendant's operation a nuisance.'

Instruction No. 2, requested by respondents, was as follows:

'You are instructed that, if you believe from the evidence in this case that the defendant manufactures, prepares, or stores on its premises materials or substances which are of a combustible or explosive nature, and such as would lead a person of ordinary intelligence, sensibilities, and prudence to fear or believe that such substances would explode, and endanger thereby the property of plaintiff or the safety of those residing thereon, and that, because of such apprehension or fear, the market value of the plaintiffs' property has been diminished, and the comfortable enjoyment of their lives and property is essentially interfered with, then the action of the defendant in keeping such materials or substances upon its premises would constitute a nuisance.'

Instruction No. 3 requested by respondents reads:

'I instruct you that, in determining whether the defendant has done some act as charged in the complaint and under the evidence admitted, which essentially interferes with the plaintiff's comfortable enjoyment of life and property, you have a right to consider such acts, if any, as would essentially interfere with the comfortable enjoyment of life and property

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