Fowler v. Fayco, Inc.

• Decision Date: 22 February 1973
• Citation: 290 Ala. 237,275 So.2d 665
• Parties: Lucille FOWLER v. FAYCO, INC., a corporation, et al. SC 72.
• Court: Alabama Supreme Court

Page 665

275 So.2d 665

290 Ala. 237

Lucille FOWLER v. FAYCO, INC., a corporation, et al.

SC 72.

Supreme Court of Alabama.

Feb. 22, 1973.

Rehearing Denied April 19, 1973.

Fred Blanton, Birmingham, for appellant.

Holder & Moore, Fayette, for appellees.

HARWOOD, Justice.

This is an appeal from an order and decree denying injunctive relief and damages because of an alleged private nuisance.

In substance the bill averred that the complainant, Lucille Fowler, owned and occupied a home on property in Fayette County, Alabama; that the respondent Fayco, Inc., leased property across the road from complainant's property on which it operated an asphalt plant, which plant from the commencement of its operation emitted 'vile and noxious fumes, odors and polluting matter into the air resulting in depreciation to complainant's property, and injury to her health.'

The bill prayed for an injunction prohibiting the continued operation of the plant, and for damages to the property, and for injuries to the complainant's health.

The respondent, Fayco, Inc., filed an answer to the bill in which it denied that its asphalt plant has emitted vile and noxious fumes or pollutants which caused depreciation in the value of complainant's property, or which would affect an ordinary, reasonable person in average mental and physical condition. Fayco further denied that the operation of the plant would do irreparable damage to the complainant or to her property, or that the plant was negligently operated; and further alleged that it had expended large sums of money and employed many persons in and about the operation of its plant.

After a hearing the Chancellor, after making an extensive finding of facts, entered a decree denying all relief sought under the bill. From this decree the complainant perfected this appeal.

The evidence introduced below tends to show that the complainant and her husband owned a half-acre tract on the south side of Alabama Highway 18, some three or four miles west of Fayette, Alabama. They acquired this tract in 1955.

Across the highway on a leased tract of land a sand and gravel operation had been conducted for some time. The Luxapalila River constitutes the western boundary of both tracts.

In 1961, the complainant and her husband, now deceased constructed a combination home and store on their tract, as well as a barbeque stand or restaurant. There was also a garage with tin sides and a pump house on the premises.

Fayco, Inc., or its predecessors, at one time operated an asphalt plant about a half mile distant which processed asphalt mix used in surfacing roads. The sand and gravel company was merged with Fayco, and thereafter in 1966, Fayco moved its asphalt plant onto the site across the road from complainant's premises.

The complainant testified that the operation of this asphalt plant caused the emission of thick black smoke and fumes all day. A greasy black film coated her house both inside and out, even getting into dresser drawers. Her shrubbery sickened. Upon touch, this film felt as though it had sand in it. There was an odor of asphalt. Within a month the complainant became sick from inhalation of the asphalt odor or fumes and moved to her mother's home about a quarter of a mile away. Prior to the operation of the asphalt plant, the complainant testified, she had never suffered from any allergic condition.

The complainant testified that when she left her home she let some people stay there to take care of the place and keep things from being stolen. It was developed on cross-examination, however, that the building comprising the residence and store had been rented almost continuously at a rental of $40.00 per month since the complainant moved out.

Complainant rented the barbecue stand to V. L. Hubbard but he closed it after about a year and a half and she has not made any effort to rent this building since then.

The complainant testified that she estimated the value of her premises to be $16,000.00 prior to the operation of the asphalt plant, and the value now was between $10,000.00 and $12,000.00. However, cross-examination of the complainant showed that the value of the premises prior to the operation of the plant was based on what some unnamed real estate dealer had told her.

Her local physician referred her to Dr. Robert H. Donald, a physician in Tuscaloosa, an ear, nose, and throat specialist, and also a specialist in allergic diseases.

By deposition Dr. Donald testified that he first saw the complainant in May 1967. His first examination revealed that the complainant's head and chest were congested, with some difficulty in breathing, which suggested an allergic condition. From complainant's history he surmised 'that this was caused probably from, if I remember correctly, they were laying some asphalt in front of her house, or doing some kind of road work in front of her house.' A coal tar distillate, along with dust, could cause this reaction.

Dr. Donald made skin patch tests with various substances the results of which showed a positive reaction to dog hair, cat hair, histamine, tobacco smoke, dust, and some grasses. No scratch test could be made to determine complainant's reaction to fumes from the asphalt. He found the complainant very sensitive to allergies. He was able to desensitize her to those substances on which he could test. However, there is no way to desensitize a patient who is allergic to fumes, and by a process of elimination, he concluded the complainant was allergic to the fumes from asphalt. Since she improved when she left her home, this supported his conclusions as to the asphalt fumes. The chemical fumes to which the complainant had been exposed definitely aggravated her condition.

Jerry Griffin lives about one fourth of a mile from the asphalt plant. For the complainant, he testified that he had worked at the asphalt plant for awhile, and the fumes did not make him sick. The smoke emitted by the plant was bad at times, though 'the new sprinkler system has helped a lot but it has not stopped it.'

Barbara Ann Hubbard and her husband moved to complainant's premises in July 1967. Mrs. Hubbard testified that smoke from the asphalt plant caused a greasy film to adhere to the house and to everything in the house. Cleaning was useless, as the film would be back the next time the plant operated, which was virtually every week. They lived at the premises until May 1967. It appears, however, that as the Hubbard's moved out, her sister-in-law, Frances Hubbert, and her husband moved in. Frances Hubbert's testimony is to the same effect as Mrs. Hubbard's as to the effect of the smoke from the asphalt plant. At one time the Hubberts moved out for a short while to find a larger house, but again returned to complainant's premises and still reside there as tenants.

The respondent's evidence shows that for some years prior to complainant's occupation of her land, the Fayette Concrete Company operated a sand and gravel company on the site of the present asphalt plant. This company was a predecessor of Fayco, and its operation was to sell sand to the Independent Construction Company which operated an asphalt plant some three-fourths of a mile from the sand and gravel operation. Independent Construction Company was merged into Fayco. Before the merger, Independent Construction and Fayco were separate corporations.

When operated by Independent Construction Company, the asphalt plant was a Barber-Greene type. After acquisition of Independent Construction by Fayco, the asphalt plant was moved to its present site.

In processing the asphalt mixture used in road building, moist sand and gravel is hauled from the river. This material is fed into a dryer by a conveyor. A flame is then blown into the dryer by pumps which make a roar or hissing sound when operated.

An elevator carries the dried sand to a mixer where the sand is weighed and then mixed with raw asphalt. This mixing process requires 45 seconds. This finished mix, which has a temperature of 300 degrees, is then dumped in trucks and hauled to the highway construction site. The raw asphalt is stored in tanks. Throughout the process the materials are conveyed as to be unexposed.

It appears that when the Barber-Greene plant began operation on the new site in 1966, there was some complaint about the smoke emitted. Fayco had a washer designed and installed. By this devise the smoke from the dryer was pumped into a large tank where many nozzles sprayed water into the smoke to remove foreign matter, resulting in only clean air exiting from the washer tank.

According to the president, Fayco was the first asphalt plant to install such a device, though all asphalt plants now have such devices.

According to Fayco's plant foreman, this washer did 'a good job,' and he did not think any particles were emitted after its installation.

In 1967, the Barber-Greene plant was replaced by a new Simplicity plant and washer. According to respondent's evidence, this new plant is the best and most modern available. Its washer is larger and has more water spraying power. The respondent's foreman testified that the only emission from the new plant is steam.

Some 12 to 17 trucks are loaded daily at the plant. The area around the plant was paved in 1970, and a jeep sweeper is used to sweep the area and keep it clean.

Black smoke emits from the washer only of it breaks down. This has not happened often, and when it has occurred, the plant is closed down until repairs are made.

Several employees of Fayco testified that while there was an odor of asphalt around the plant, they had suffered no ill effects therefrom. They further testified that they had not noticed any black smoke, or particles, falling in the area and the only emission from the plant resembled steam which just blew away.

The president of Fayco testified that in its operation, local labor, local trucks were used, and raw materials were purchased locally, and since May...