Comet Delta, Inc. v. Pate Stevedore Co. of Pascagoula, Inc.

• Decision Date: 24 February 1988
• Docket Number: No. 57188,57188
• Citation: 521 So.2d 857
• Parties: COMET DELTA, INC. v. PATE STEVEDORE CO. OF PASCAGOULA, INC.
• Court: Mississippi Supreme Court

Page 857

521 So.2d 857

71 A.L.R.4th 1

COMET DELTA, INC. v. PATE STEVEDORE CO. OF PASCAGOULA, INC.

No. 57188.

Supreme Court of Mississippi.

Feb. 24, 1988.

J. Robertshaw, Robertshaw, Terney & Noble, Greenville, for appellant.

W. Swan Yerger, Heidelberg, Woodliff & Franks, Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and ZUCCARO, JJ.

DAN M. LEE, Presiding Justice, for the Court:

Comet Delta, Inc. ("Delta") appeals the dismissal of its action brought in the Chancery Court of Jackson County, Mississippi, against Pate Stevedore Company of Pascagoula, Inc. (Pate) for alleged damage caused to Delta's rice stored at the Jackson County Port Authority in August 1981. Delta alleged $247,161.86 in damages.

The chancery court granted Pate's motion to dismiss based on Delta's failure to state a claim upon which relief could be granted. Delta assigns this error:

APPELLANT ASSIGNS AS ERROR ACTION OF THE CHANCELLOR IN GRANTING A MOTION TO DISMISS THE AMENDED COMPLAINT UNDER RULE 12(b)(6), MRCP, THUS DENYING IT ITS DAY IN COURT, WHERE THE FACTS IN THE RECORD DEMONSTRATE ONE OR MORE OF SEVERAL GROUNDS SUPPORTING RELIEF.

FACTS

Since this case presents a dismissal based on pleadings, there is little factual development. However, a brief summary of the facts follows:

This case was commenced by Comet Delta, Inc., ¹ as an action against Pate Stevedore Company of Pascagoula, Inc. ("Pate"), and "John Doe," the then unknown owners of coal stored near Terminals "A" and "F" on the Jackson County Port Authority ("Port") premises, under lease to Pate, and located in the vicinity of Terminals "G" and "H" under lease to Ryan-Walsh Stevedoring Company, Inc. ("Ryan-Walsh").

When the identity of the owners became known, Delta amended the complaint naming Armada Coal Export, Inc. ("Armada"), and Zenith Coal Sales ("Zenith") as defendants in the stead of "John Doe." This was the only amendment. Zenith filed no response, and a judgment was entered November 21, 1983, against it which remains unsatisfied. Armada filed a petition for bankruptcy and this action was dismissed without prejudice as to it on May 20, 1985. The only remaining parties at interest are Delta and Pate.

The allegations in the complaint are that Delta had shipped itself, care of Ryan-Walsh, 200,000 50-kilo polypropylene bags of U.S. No. 2 or better milled rice, maximum 4% brokens, for storage in Port terminals leased by Ryan-Walsh. It contracted to sell this rice to Lodean, Ltd. ("Buyer") of London, United Kingdom, for $614 per metric ton, f.o.b. Port. This purchase price on 10,022.68 metric tons equals $6,153,925.52.

About half this rice was stored by Ryan-Walsh in Terminals "G" and "H" and damaged by windborne coal dust from large piles of coal placed by Pate in open storage across a slip from Terminals "G" and "H."

Buyer designated SGS Control Services ("SGS") as its agent for inspection and acceptance of the rice prior to shipment to Kalabar, Nigeria. On August 17, 1981, Delta gave Ryan-Walsh instructions to remove plastic drapes covering rice stored in Terminals "G" and "H" for purposes of fumigation, to permit inspection by SGS as agent for Buyer. During the period of August 17-24, while the rice was uncovered for inspection, coal dust stored by Pate was carried by winds and contaminated this rice. As a result of this contamination, SGS rejected the rice for the account of the Buyer.

As a direct and proximate result of this contamination, Delta alleged monetary damages amounting to $247,161.86, itemized in paragraph 6 of the amended complaint.

The amended complaint charges that coal dust in open storage has a known propensity to be blown by winds and deposited upon nearby property, that Pate interfered with Delta's legal right to store its property in adjacent terminals free from harm without just cause or excuse, and that Pate committed an intentional act involving a culpable wrong, resulting in damage to Delta's property and losses under its contract as the necessary consequence of Pate's acts. It further charged that Pate is liable to it under the rule of absolute or strict liability for all damages proximately caused by or resulting from contamination of its rice.

Pate's answer was duly filed and later supplemented with two additional defenses. During July 1985 Pate noticed a motion to dismiss for hearing before the chancellor based on the grounds that:

The Amended Complaint fails to state a claim upon which any relief can be granted against this defendant.

Pate's motion was heard on July 8, 1985, and on December 4, 1985, the chancellor entered an order dismissing the amended complaint under Rule 12(b)(6), M.C.R.P., from which this appeal is prosecuted.

This Court has stated that:

A motion to dismiss under MRCP 12(b)(6) tests the legal sufficiency of the complaint ... to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.

Lester Engineering v. Richland Water & Sewer District, 504 So.2d 1185, 1186 (Miss.1987) (quoting Busching v. Griffin, 465 So.2d 1037, 1039 (Miss.1985)). See also Martin v. Phillips, 514 So.2d 338 (Miss.1987); State Ex Rel Breazle v. Lewis, 498 So.2d 321, 324 (Miss.1986); Ford v. White, 495 So.2d 494, 496-97 (Miss.1986); Whitten v. Commercial Dispatch Publishing Co., Inc., 487 So.2d 843, 845-46 (Miss.1986); Gray v. Baker, 485 So.2d 306, 308 (Miss.1986); Luckett v. Mississippi Wood, Inc., 481 So.2d 288, 290 (Miss.1985); Stanton & Associates v. Bryant Construction Co., 464 So.2d 499, 505 (Miss.1985).

When reviewing a complaint under 12(b)(6), it is important to evaluate the complaint on the basis of Rule 8(a) and (e).

Rule 8(a) Miss.R.Civ.P., requires only that in its complaint a plaintiff provide (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

Rule 8(e) Miss.R.Civ.P., then provides (1) each averment of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required.

When a complaint is tested via a motion under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the sufficiency of the complaint is in substantial part determined by reference to Rule 8(a) and (e).

Luckett, 481 So.2d at 290; Stanton & Associates, 464 So.2d at 505.

Evaluation under this standard is quite broad. Wright and Miller, in analyzing the identical federal rule, state:

The question therefore is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief. The complaint should not be dismissed merely because plaintiff's allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.

* * *

Nonetheless, as is discussed more fully elsewhere, the pleader must set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.

5 C. Wright & A. Miller, Federal Practice & Procedure Sec. 1358 at 601-02, n. 76 (1969) (emphasis added).

Delta argues it has stated a claim under nuisance. There are basically two types nuisances, public and private.

Mississippi has no seminal case distinguishing between public and private nuisances. The Restatement (Second) of Torts Sec. 822 outlines the elements of private nuisance, thusly:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

In its complaint Delta alleged Pate committed an intentional act involving a culpable wrong by storing coal in the open knowing its propensity to produce windborne dust. Thus, Delta has sufficiently alleged that part of a claim for private nuisance alleging an intentional and unreasonable invasion.

Pate suggests, however, that Delta has not alleged and, indeed, cannot show that it has an "interest in the private use and enjoyment of land," the invasion of which private nuisance protects. See Reber v. Illinois Central Railroad Company, 161 Miss. 885, 138 So. 574 (1932); Prosser and Keeton on the Law of Torts, Sec. 87 at 621 (5th Ed.1984). Taking the pleading in the light most favorable to Delta, we are constrained to disagree. The pleadings do not clearly establish that Delta lacks a sufficient interest in land.

The pleadings disclose only that Ryan-Walsh leased the terminal, or warehouse, from the Jackson County Port Authority and Delta stored its rice with Ryan-Walsh. If Delta has a leasehold interest, or some other real property interest, it may sue in nuisance. On the face of these pleadings, that issue cannot be resolved. "Such an issue must, necessarily be resolved by reference to matters ... outside the pleadings," and, therefore, dismissal was improper. Lester Engineering, 504 So.2d at 1187. Resolving the ambiguity in favor of Delta, it is not clear that Delta could not recover "under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So.2d 1037, 1039 (Miss.1985). See also Lester Engineering v. Richland Water & Sewer District, 504 So.2d 1185, 1187 (Miss.1987). Dismissal here was premature.

Likewise, we think the complaint cannot be dismissed due to its failure to state a claim for relief under public nuisance. The fact that Pate's actions might support a private nuisance claim does not prohibit recovery for a public nuisance....