Flanigan v. City of Springfield

• Decision Date: 10 September 1962
• Docket Number: No. 49007,No. 2,49007,2
• Parties: B. F. FLANIGAN and Lela H. Flanigan, Husband and Wife, Earl C. Hatfield and Earleene Hatfield, Husband and Wife, Charles Hutchinson and Ruth V. Hutchinson, Husband and Wife, Dwight P. Hutchinson and Bessie M. Hutchinson, Husband and Wife, John M. Jackson and Vivian M. Jackson, Husband and Wife, Dan R. Rader and Betty Rader, Husband and Wife, Dale Sissel and Virgie Sissel, Husband and Wife, Emerson Taylor and Helen M. Taylor, Husband and Wife, Junior R. Yenicheck and Hazel J. Yenicheck, Husband and Wife, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 700

360 S.W.2d 700

B. F. FLANIGAN and Lela H. Flanigan, Husband and Wife, Earl C. Hatfield and Earleene Hatfield, Husband and Wife, Charles Hutchinson and Ruth V. Hutchinson, Husband and Wife, Dwight P. Hutchinson and Bessie M. Hutchinson, Husband and Wife John M. Jackson and Vivian M. Jackson, Husband and Wife, Dan R. Rader and Betty Rader, Husband and Wife, Dale Sissel and Virgie Sissel, Husband and Wife, Emerson Taylor and Helen M Taylor, Husband and Wife, Junior R. Yenicheck and Hazel J Yenicheck, Husband and Wife, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant.

No. 49007.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1962 Motion to Transfer to Court En Banc Denied Oct. 8, 1962.

John B. Newberry, Springfield, for appellant.

Chinn, White & Dickey, Springfield, for respondents.

BOHLING, Commissioner.

This is an appeal by the City of Springfield, Missouri, defendant in nine actions, each instituted by a husband and wife, seeking damages for alleged nuisance created by the defendant in the operation of a sewage disposal plant. A change of venue was granted the plaintiffs in each case to Webster County from Greene County. The material allegations of each petition, in three counts, were substantially the same. The first count was for temporary nuisance; the second count, for permanent nuisance; and the third count was for injunctive relief. The nine cases were consolidated for trial by order of the trial court. The cases went to the jury on the theory of temporary nuisance, Counts II and III being voluntarily dismissed. The trial resulted in a judgment for $4,000 for the respective plaintiffs in each case, entered upon nine separate jury verdicts for said amount in the consolidated trial. The aggregate amount in dispute, exclusive of costs, on this appeal in the consolidated cases exceeds $15,000 and vests appellate jurisdiction in this court. Kitchen v. City of Clinton, 320 Mo. 569, 8 S.W.2d 602.

Plaintiffs claimed damages for foul and noxious odors conveyed by air currents across their respective lands from defendant's sewage plant known as the Southwest Disposal Plant.

In 1955 defendant City was authorized to issue bonds in excess of $9,000,000 for the purpose of rehabilitating its sewer system and constructing sewage disposal plants. Thereafter, it acquired 40 acres of land and constructed thereon at a cost of approximately $3,300,000 its Southwest Disposal Plant, an activated sludge treatment plant, also incorporating therein what is known as the Kraus process, for the purpose of disposing of certain sewage from defendant City. Defendant began partial treatment of sewage in December, 1959, and went into essentially full operation in January, 1960, at its said plant. Plaintiffs reside in a farming community in the vicinity of said plant. Prior to 1960 that area was free from all disagreeable and noxious odors. In March or April, 1960, within sixty to ninety days after said plant started full operations, disagreeable and noxious odors became noticeable by plaintiffs. Plaintiffs established that these odors came from defendant's Southwest Disposal Plant and their intensity and noxiousness depended somewhat but not entirely upon the air currents around the plant. These odors were almost constant and got progressively worse 'for quite some length of time.' Their intensity and noxiousness started to subside in the Summer, were not so noticeable in the Fall of 1960 but were again noticeable about the first of the year and again about the time of trial--March 27, 1961.

Allen Mayfield, sanitary engineer in charge of the sanitary sewer system of defendant, testified that the Southwest Disposal Plant was designed to give complete treatment to sewage. The jury could find from his testimony that the operation of the plant produced methane, carbon dioxide, some hydrogen sulphide and other gases; that they were doing just what they could in the operation of the plant for several months; that is, 'operate it by guess and by gosh because certain of the control features were not operating correctly'; that any sewage plant can get into 'a temporary upset.' but, barring that, under normal operation at the time of trial the plant should be 'substantially odorfree' and one would 'very definitely' have to get over on the plant property (the 40 acres) to detect the odor; and, as a witness for defendant, that they had an odor problem in the Spring and Summer of 1960.

A chemist, plaintiffs' witness, testified that decomposing sewage produces methane, carbon dioxide, hydrogen sulphide, ammonia and other gases; that hydrogen sulphide has a very distinctive odor, that of rotten eggs, is easily recognized, will cause boards painted with white lead paint to turn to a gray or darker color, in slight concentration is fatal, and the smell is nauseating. This witness identified the contents of a bottle, plaintiffs' Exhibit 1, upon smelling it, as hydrogen sulphide.

Several plaintiffs testified the odor from defendant's Southwest Disposal Plant was the same as or similar to the odor from plaintiffs' Exhibit 1, the odor of rotten eggs or of an outdoor toilet.

Plaintiffs' witness Dr. Thomas M. MacDonnell testified that hydrogen sulphide in concentration sufficient to discolor white lead paint on houses is sufficient to cause injury and discomfort to body tissues, irritate mucous membranes, and cause headaches, lassitude and nausea in warm weather.

The different plaintiffs testified as to the manner in which each was affected by the vaporous discharge from defendant's Southwest Disposal Plant. It turned white lead paint on some of the houses to a grayish or dark brown. This could be washed off. Although they kept their houses closed, they could not free themselves of the odor. Some would drive away from home to be rid of it. The odor was such that plaintiffs lost sleep and rest at night. It destroyed their appetites and made it unpleasant to eat their meals, made it embarrassing for them to have company, or to attend church. The odor was described as most nauseating, making plaintiffs sick at the stomach. It caused burning sensations in the mucous membrances of the eyes, nostrils and throat. There was testimony from one or two witnesses that the would wake at night with a scum on their lips, and from one that it could be tasted.

Consoer-Townsend & Associates of Chicago, Illinois, was the consulting engineering firm in charge of the Springfield sewage improvement project. That firm made a complete survey of the City of Springfield with respect to its sewage problem, designed the Southwest Disposal Plant, prepared the drawings and specifications therefor, and supervised its construction. Leo Rehm was the 'general partner' of Consoer-Townsend in charge of this project, and James Moneyhan, another Consoer-Townsend associate, assisted Mr. Rehm. There was testimony from Mr. Rehm and other witnesses for the defendant that all of the scientific appliances which were available and reasonably practicable to avoid a nuisance were incorporated in said plant. Mr. Rehm testified that Mr. Moneyhan participated in meetings before the public generally at the city council prior to the approval of the bond issue for the sewage improvement project in 1955, and 'came right out' and stated that a sewage disposal plant of the type of defendant's Southwest Disposal Plant 'that is well operated and well maintained shouldn't have an odor away from the immediate vicinity of the structure,' meaning thereby away from the plant site; that is, the 40-acre tract on which the plant is located. There was other corroborating testimony as to Mr. Moneyhan's statements at public meetings before the city council. Mr. Rehm testified it was not unusual during the initial stages of operation of a sewage treatment plant to have odors of a temporary nature, but such odors should not have extended off the 40-acre plant site.

Appellant's first point is: 'The Respondents did not offer any evidence to show that the defendant failed to use all the scientific appliances which were available and reasonably practicable to abate the nuisance'; and the court erred in not sustaining appellant's motion for a directed verdict at the close of all the evidence.

In Stewart v. City of Springfield (1942), 350 Mo. 234, 165 S.W.2d 626, 631, adopting the rulings in Riggs v. City of Springfield (1939), 344 Mo. 420, 126 S.W.2d 1144, 1153, 122 A.L.R. 1496, cases cited by defendant, we considered, as theretofore, a municipal sewer system, 'because of the inherent nature of the operation' (Newman v. City of El Dorado Springs, infra), to be a permanent nuisance; that all damages, past and future (Stewart, supra, 165 S.W.2d loc. cit. 628), sustained by a riparian landowner had to be recovered in one action under the law of eminent domain (165 S.W.2d loc. cit. 630), the cause of action being subject to the statute of limitations (165 S.W.2d, loc. cit. 631). Court en banc further stated in the Stewart case, supra: 'If a sewer system were to be constructed today, with modern and efficient equipment available for purifying the sewage, a different rule might probably apply.'

In affirming a recovery for the maintenance of a temporary and abatable nuisance arising from the operation of a municipal sewer system, the Springfield Court of Appeals in Newman v. City of El. Dorado Springs (1956), Mo.App., 292 S.W.2d 314, 318, made the following observations, with respect to the effluent from a municipal sewer system into a water course being necessarily a permanent nuisance at the time of the Stewart, supra, and earlier cases, and holding: 'There were then no means and methods for the elimination and disposal of obnoxious solids, liquids and gases. With the advance of science, however, such is no longer the case and the employment of modern mechanical and chemical processes makes it possible to eliminate the greater part of what was, in the days of...