Conley v. Amalgamated Sugar Co.

• Decision Date: 24 November 1953
• Docket Number: No. 7926,7926
• Citation: 74 Idaho 416,263 P.2d 705
• Parties: CONLEY et al. v. AMALGAMATED SUGAR CO.
• Court: Idaho Supreme Court

Page 705

263 P.2d 705

74 Idaho 416

CONLEY et al. v. AMALGAMATED SUGAR CO.

No. 7926.

Supreme Court of Idaho.

Nov. 24, 1953.

Earl E. Reed, Nampa, Ray, Quinney & Nebeker and T. K. Swan, Salt Lake City, Utah, for appellant.

Donart & Donart, Weiser, Meek & Miller, Caldwell, for respondents.

GIVENS, Justice.

Indian Creek, a natural stream of fluctuating, seasonal flow, augmented by drainage and waste waters from various sources, extends generally northwesterly through Nampa, thence to and through Caldwell. In Caldwell respondents own and operate a grocery in a building owned by them, built partly over Indian Creek.

Appellant owns and operates a sugar beet factory about 3/4 of a mile north of Indian Creek, west of Nampa and six or seven miles east of Caldwell.

July 25, 1951 respondents sued appellant, alleging water and other liquids carrying particles of beet pulp and other by-products of sugar beets flowed from its factory into Indian Creek, thence down the stream to respondents' place of business, causing the store to be permeated with a strong odor of beet pulp, so nauseating and offensive to the sense of smell as to constitute a nuisance and drive customers out of and away from the store from October 1950 to around May 1, 1951, about the time appellant's plant was in operation; asking for $30,000 damages to the building and $30,000 damages to their business, and also for a perpetual injunction restraining and enjoining appellant from so polluting the waters of Indian Creek and permitting them, carrying such offensive odors, to flow from its plant to respondents' store.

The answer admitted the location of the respective businesses, alleging Indian Creek was a natural drainage for the area where the factory and other places of business and properties adjacent thereto were located, and while Indian Creek may at certain times have been odoriferous, it was not caused by any negligence on the part of appellant, but by refuse from slaughter houses, a fish farm, numerous feed lots, and sewage disposal, and that appellant has at all times used all reasonable means to minimize the flow of its waste into the Creek.

A supplemental complaint filed March 10, 1952 with the court's permission, alleged a continuation of pollution of the stream by appellant and consequent odors in respondents' store between December, 1951 and January, 1952, 'causing continuing additional damage,' not specifying the amount thereof in money.

Appellant argues, since it does not specify the amount of money as damages for the asserted continued conditions in 1951-52, the damages for 1950-51 must have been sufficient to justify the award. Appellant did not challenge the supplemental complaint by demurrer or otherwise; the only reference thereto in connection with its filing was that it was deemed denied.

While it might have been better to specify the amount, Molyneux v. Twin Falls Canal Co., 54 Idaho 619, 35 P.2d 651, 94 A.L.R. 1264, it is not a fatal defect, if any, because judgment aids the pleadings, which then must be liberally construed to sustain the judgment. The Mode, Ltd., v. Myers, 30 Idaho 159, 164 P. 91; Pendrey v. Brennan, 31 Idaho 54, 169 P. 174; Medling v. Seawell, 35 Idaho 333, 207 P. 137; Marshall-Wells Co. v. Kramlich, 46 Idaho 355, 267 P. 611.

The amount of damage was to be determined on all the evidence, which covered both periods. The judgment certainly would bar further recovery for the period 1951-52. Marshall v. Underwood, 38 Idaho 464, 221 P. 1105.

The court's findings, Nos. V, VI, VII, covered both periods and while they did not separate or specify the amount of loss in each season, i. e., 1950-51, 1951-52, since the total award was not more than that asked, $30,000, there can be no question of the decree being for more than asked in the complaint. Appellant has not been prejudiced but is protected by this decree being res adjudicata as to the season of 1951-52, while respondents could have, perhaps, asked for more than the $30,000 sought in the original complaint. They should not now, after decree, be penalized because, in effect, they claimed only $30,000 for both periods. In the long run, that is all it amounts to as a practical proposition and there is no inconsistency therein. If the amount had been for more than $30,000, there might have been some point to appellant's contention, but as it is, there is none--either technically as to pleading for the reasons above given, or in substance, because the evidence in the whole record supports the decree as found by the court covering both periods of injury to respondents' business, the total of the amount decreed being no more than asked and based on more asserted loss than the amount awarded in the decree.

Trial was had to the court without a jury March 10, 1952, resulting in thse essential findings of fact: between September 27, 1950 and February 20, 1951, liquids carrying particles of beet pulp and other byproducts of sugar beets emptied from appellant's plant into Indian Creek, causing such an offensive stench in respondents' store as to materially reduce and damage their business; that such conditions again continued between December, 1951 and January, 1952.

The court, on these findings, awarded damages for injury to respondents' business of $5,932; and that appellant be permanently and perpetually enjoined from permitting beet pulp drainage water and beet pulp to discharge into Indian Creek in sufficient quantities to cause the waters of the Creek to contain the odor of beet pulp at respondents' property.

The appeal herein is from only the portion of the decree awarding damages. No question connected with the injunction or injury to respondents' building is, therefore, before us.

Appellant's assignments of error challenge only the sufficiency of the evidence to sustain the findings.

Respondents relied solely upon the odor of beet pulp as constituting the nuisance and causing damage to their business. There was no other sugar beet factory emptying refuse and liquids into the stream.

There was substantial, direct and specific evidence by respondents and some eighteen witnesses, including customers of the store, other merchants having places of business nearby, and disinterested citizens and residents of Caldwell, that the odor of beet pulp to a nauseating degree was in respondents' store during the operation of appellant's plant and the periods charged. Respondents' evidence also portrayed the persistency of the infiltrated odor in the store, difficulty of eradication and futile efforts to dispel it therefrom.

The evidence shows it was common and general talk the beet pulp odor was in the store--certainly harmful advertising as to a grocery store and meat market. For example: witness Mac Winkelblack, previously a butcher in the Parrish Meat Market which went out of business, was employed by respondents beginning September 1951 and urged his previous customers to trade at respondents' place of business; that many of them, specifically 25, came there to buy meat and when they detected the odors in the store, left and did not return.

Witness Fenrich, a member of the City Council and owner of a place of business near Indian Creek, testified directly that the odor of beet pulp was noticeable along Indian Creek from three days after the beet factory opened until three weeks after it closed; that it was definitely beet pulp which caused the water in the Creek to be a milky color and carry the odor and that he noticed it in respondents' store.

Appellant countered respondents' evidence with expert and lay testimony and documentary evidence that no odor of beet pulp persisted or could persist down the stream from where the waste products of appellant's plant entered into Indian Creek, as far as respondents' store, and if odors emanated from the Creek, they were from other sources entirely disconnected from appellant's business. Also, that the amount of offensive effluent from appellant's plant was so small in proportion to the regular flow of the Creek,...