City of Harrodsburg v. Brewer

• Decision Date: 04 March 1932
• Citation: 243 Ky. 378,48 S.W.2d 817
• Parties: CITY OF HARRODSBURG v. BREWER et al. SAME v. FROST. SAME v. SALLEE.
• Court: Kentucky Court of Appeals

48 S.W.2d 817

243 Ky. 378

CITY OF HARRODSBURG v. BREWER et al.

SAME v. FROST.

SAME v. SALLEE.

Court of Appeals of Kentucky

March 4, 1932

Rehearing Denied May 13, 1932.

Appeal from Circuit Court, Mercer County.

Actions by Garrett Brewer and others, by William Frost, and by Tom Sallee, respectively, against the City of Harrodsburg. Judgments for plaintiffs, and defendant appeals from the judgments in the first two cases, and moves for an appeal from the judgment for plaintiff Sallee.

Judgments appealed from reversed, motion for appeal sustained, and judgment for plaintiff Sallee reversed, with directions.

C. E Rankin, of Harrodsburg, for appellant.

R. W Keenon, of Lexington, Bacon R. Moore, of Harrodsburg, and William Sandifer, Jr., of Lexington, for appellees.

THOMAS J.

The city of Harrodsburg, Ky. is one of the fourth class. In the latter part of the year 1928, pursuant to ordinances theretofore enacted, it began the construction of a sewerage disposal plant, a scientific contrivance for the taking care of and disposing of sewage. The plant was completed in December, 1929, when the city commenced operating it. The appellees and plaintiffs below, Garrett Brewer et al William Frost and Thomas Sallee, owned homes located near to the plant, and on September 11, 1930, they filed their separate actions against the city in the Mercer circuit court seeking to recover damages against it because of the alleged nuisance created by the operation of the plant, whereby the atmosphere for a great distance therefrom, including the territory of the homes of the three plaintiffs, became contaminated with foul and poisonous odors, to such an extent as to render their premises almost uninhabitable at times and whereby their use and occupation and their rental and permanent values were greatly reduced, and they sought judgment for the amount of such alleged damages against defendant.

The answers contested all the grounds of recovery, and upon the trial Garrett Brewer et al. recovered a verdict for $2,750, William Frost recovered one for $950, and Thomas Sallee recovered one for $350. Defendant's motion for a new trial in each case was overruled, and from the judgment pronounced on the verdict it has prosecuted an appeal in the Brewer and Frost cases and has filed a copy of the transcript in the Sallee case and moved this court for an appeal from the judgment recovered therein. The cases were consolidated and tried together below and will be so disposed of in this court.

The chief argument advanced in this court by counsel for the city for a reversal of the judgments, and upon which the two others made by him depend, is that the court erred in submitting to the jury the permanency of the cause of the alleged injury to the premises of each plaintiff, and submitting the measure of their damages as based upon such permanent cause. The other additional arguments made are: (a) That if the case was one permitting recovery for a permanent cause, then the instruction submitting it was improperly framed, and (b) that the verdicts in any event are excessive. The jury in its verdict in each case expressly stated therein, "This was under permanent injury instruction No. 2," and from which it indisputably appears that if the court erred in submitting the permanency of the wrong, with the measurement of damages in such case, it was most prejudicial and requires a reversal of the judgments. It is also manifest that if we should be of that conclusion a disposition of the other two collateral arguments above referred to, (a) and (b), will be unnecessary.

The evidence shows that the disposal plant, consisting of a septic tank and other appurtenances devised by scientific research and study, is of the latest plan and type and one which experience has demonstrated will function as intended and in a manner, if properly managed and conducted, so as to prevent the damaging escape of odors, gases, or other contaminating substances, except, perhaps, upon occasions and then only in the immediate presence of the plant. The evidence also is undisputed that sometimes at the beginning of the operation of such a constructed plant, and until a correct knowledge of how it should be operated by the one who does it is acquired, there will be some offensive odors, but which in all cases can and may be eventually remedied. At the beginning of the operation, and as soon as the emission of odors was discovered to such an extent as to interfere with surrounding habitations, the city sent for an acknowledged expert, who came upon the scene and found that the plant was constructed properly and in accordance with the most scientific method and that with greater familiarity with the proper method of operation the emitted odors would soon disappear. But, shortly thereafter, and while the city was attempting to follow the instructions so given, these actions were filed against it resulting in the judgments appealed from.

Instruction No. 2 under which the jury returned its verdict in each case and to the giving of which defendant objected and excepted, was in these words: "If you find for the plaintiffs all or any under instruction No. 1 and further believe from the evidence that the said structure was permanent and the conditions producing the odors, if any, could not be remedied in the use of same, the measure of recovery would be the difference between the market value of...