Chappell v. City of Springfield

• Decision Date: 12 April 1965
• Docket Number: No. 2,No. 50473,50473,2
• Citation: 388 S.W.2d 886
• Parties: Fred S. CHAPPELL and Edna E. Chappell, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant. Earl and Earleene HATFIELD, Husband and Wife, B. F. and Lela H. Flanigan, Husband and Wife, Dale and Virgie Sissel, Husband and Wife, Don R. and Betty Rader, Husband and Wife, Emerson and Helen M. Taylor, Husband and Wife, John and Vivian Jackson, Husband and Wife, Junior and Hazel J. Yenicheck, Husband and Wife, Dwight and Bessie Hutchinson, Husband and Wife, Charles and Ruth V. Hutchinson, Husband and Wife, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 886

388 S.W.2d 886

Fred S. CHAPPELL and Edna E. Chappell, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation,

Appellant.

Earl and Earleene HATFIELD, Husband and Wife, B. F. and Lela

H. Flanigan, Husband and Wife, Dale and Virgie Sissel,

Husband and Wife, Don R. and Betty Rader, Husband and Wife,

Emerson and Helen M. Taylor, Husband and Wife, John and

Vivian Jackson, Husband and Wife, Junior and Hazel J.

Yenicheck, Husband and Wife, Dwight and Bessie Hutchinson, Husband and Wife, Charles and Ruth V. Hutchinson, Husband and Wife, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant.

No. 50473.

Supreme Court of Missouri, Division No. 2.

April 12, 1965.

White, Dickey & Skelton, Turner White, Springfield, Lincoln, Haseltine, Keet, Forehand & Springer, Horace S. Haseltine, Springfield, for respondents.

John B. Newberry, Springfield, for appellant.

EAGER, Judge.

This appeal arises from the trial of two consolidated actions in each of which the plaintiffs charged the defendant city with the operation of a continuing nuisance in connection with its sewage disposal plant southwest of the city. One suit was instituted by Fred S. Chappell and his wife, the other by nine different married couples. These various plaintiffs were the owners of separate tracts in the vicinity of the plant, located in various directions and at various distances from it. The distances varied from one quarter of a mile to one mile, and the directions from south to southwest to northwest to north to southeast. Their tracts varied in size from relatively small suburban tracts to farms well in excess of one hundred acres. All lived on their respective tracts and all the homes were modern dwellings. The trial was had in Dallas County on changes of venue, and this appeal is from an order granting a new trial to the respondents, after verdicts for the appellant.

In 1959 the City of Springfield completed the construction of a new sewage disposal plant on a forty-acre tract a few miles southwest of the city; it cost approximately $3,300,000, and a much larger bond issue was passed in order to permit rehabilitation of the sewer system generally. This was located in what was essentially a farming area but it has, as stated, become a mixed area of farms and suburban homes with substantial acreage. The plant went into full operation in January, 1960. It is described as an 'activated sludge treatment plant,' specially designed for Springfield, with the 'Kraus' process designed into the system for the purpose of taking care of heavy industrial waste. The latter process is not more specifically described. The plant was described by plaintiffs' expert as a good one, with a question as to a lack of capacity in certain respects. The main sewage line to the plant runs for approximately four miles from an old disposal plant.

In 1960 all these same plaintiffs filed ten separate suits against the city, claiming damages for the creation of a temporary nuisance by reason of the odors created and distributed by this disposal plant. Nine of the cases were consolidated; the trial resulted in nine separate verdicts of $4,000 against the city, being one for the owners of each tract. On appeal, the judgment in that case was affirmed on the theory of temporary nuisance. Flanigan v. City of Springfield, Mo., 360 S.W.2d 700. The Court there said at loc. cit. 703-704 (quoting in part): 'Later, that court in Hillhouse v. City of Aurora (1958), Mo.App., 316 S.W.2d 883, 887, approved and followed the Newman case [Mo.App., 292 S.W.2d 314], supra, and stated (loc. cit. 888): 'Where riparian landowners seek to treat as temporary and abatable the damage resulting from operation of a permanent municipal sewer system * * *, and where the temporary and abatable character of the nuisance and resulting damage is not conceded expressly or in necessary effect (contrast the Newman case, supra), we think that recovery by the landowners, as for damage resulting from a temporary and abatable nuisance, should be permitted only upon evidence from which the triers of the facts fairly and reasonably may infer, and actually do find, that it would have been both scientifically possible and reasonably practicable for the offending municipality to have abated the nuisance when the landowners' cause of action accrued.' * * * In these circumstances we conclude it was a jury question whether it was scientifically possible and reasonably practicable for defendant to have so operated its plant that foul and noxious odors would not have escaped therefrom.' The evidence there was very similar to the evidence here, except for matters which we shall specifically mention. That judgment was satisfied, releasing all damages to and including March 27, 1961, and a settlement was made with the Chappells (whose case was not tried) on the same basis.

In this suit all plaintiffs claim damages separately for a continued and continuing nuisance from the odors created by the plant since March 28, 1961. They allege in substance (omitting formalities and nonessentials) that: defendant has caused and permitted foul and noxious odors and gases to emanate and escape from its plant, which are carried by normal air currents over the properties of plaintiffs; that the plant incorporates all modern designs and developments necessary to prevent such odors from existing beyond the boundaries of defendant's tract and that it was and is 'scientifically possible and reasonably practicable' for defendant to so operate its plant; all to the damage of plaintiffs in modes to be mentioned later and in varying amounts. In one petition it was alleged that the plant had been overloaded from its inception, particularly in its 'digester' capacity, and that 'sludge' is deposited in a sludge bed on the plant site which adds to the noxious odors. Upon the trial the jury returned ten separate verdicts for the city and against each separate pair of plaintiffs. Subsequently, the Court granted new trials as to all plaintiffs except the Hatfields, the Flanigans and the Sissels, on the stated ground that the verdict was 'contrary to the weight of the evidence.' From that order the defendant has appealed. Those plaintiffs whose motions were overruled have not appealed, and they are not to be considered on this appeal.

The points made here by appellant city may be stated as follows: that its motion for a directed verdict at the close of all the evidence should have been granted because the evidence of plaintiffs and of their experts demonstrated that the odors came either from defendant's plant or from 'sludge' spread on neighboring fields (which latter phase will be mentioned in discussing the evidence), that all the evidence was so indefinite that a determination of the cause or source could only be arrived at by speculation, and that the existence of odors from spreading the sludge on the fields was not an issue; also, that any discretion residing in the trial court for the granting of a new trial on the ground assigned was arbitrarily exercised, since it granted new trials to some plaintiffs and denied them to others.

The respondent plaintiffs assert: that defendant's motion for a directed verdict was insufficient (to which we shall refer later); that all plaintiffs made clearly submissible cases; that it was within the Court's discretion to grant new trials to some plaintiffs and not to others; and, that the noxious odors created both at the plant and by spreading the sludge were wrongful acts. We have jurisdiction, since the claims of the present plaintiffs aggregate well over $100,000.

Our consideration will necessarily involve a review of the evidence to determine whether, in fact, these plaintiffs made submissible cases. Where the Court grants plaintiffs a new trial upon the ground that the verdict is against the weight of the evidence, an appellate court will not ordinarily interfere if there was substantial evidence to justify the submission of the case to the jury and to sustain a verdict for the plaintiffs. Allman v. Yoder, Mo., 325 S.W.2d 472; Berry v. Harmon, Mo., 323 S.W.2d 691; Andres v. Brown, Mo., 300 S.W.2d 800; Graves v. Atchison, Topeka & Santa Fe Ry. Co., 360 Mo. 167, 227 S.W.2d 660. We examine the submissibility in view of the issues submitted. Allman, supra. We need not dwell here on the latitude permitted trial courts, generally, in such matters. Madsen v. Lawrence, Mo., 366 S.W.2d 413.

At some time after the completion of the plant the city began hauling its 'sludge,' which is the solid or semi-solid product remaining after the treatment process, out to neighboring fields in tank trucks and spreading it. This was one of two or three methods of disposition and the practice was followed, of course, only on those tracts where the owners wanted and accepted the sludge as a fertilizer or soil conditioner. Three of the plaintiff couples accepted this product, and much was spread on other fields in the neighborhoods of the various plaintiffs. The amended petitions did not charge that these acts of defendant constituted any part of the nuisance. When the subject arose during the trial, plaintiffs sought leave to amend, but this was refused on defendant's objections. Consequently, the issue submitted to the jury was whether plaintiffs had been damaged by reason of the fact that defendant had 'permitted or caused foul and noxious odors to escape from its plant * * *,' when it was 'scientifically possible and reasonably practicable for defendant, City, so to have operated the said plant * * *' that the odors could have been eliminated. The apparent theory of the trial court, necessarily adopted by the parties, was that defendant might be held liable for offensive odors escaping from its plant or from the sludge beds on its own tract, but not for odors from sludge spread elsewhere; this, for the reason that no such claim had been pleaded and that it would be...