Fuchs v. Curran Carbonizing & Engineering Co.

• Decision Date: 17 May 1955
• Docket Number: No. 29084,29084
• Citation: 279 S.W.2d 211
• Parties: Tom A. FUCHS (Plaintiff), Appellant, v. CURRAN CARBONIZING and ENGINEERING CO., Inc., a Corporation (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 211

279 S.W.2d 211

Tom A. FUCHS (Plaintiff), Appellant, v. CURRAN CARBONIZING and ENGINEERING CO., Inc., a Corporation (Defendant), Respondent.

No. 29084.

St. Louis Court of Appeals, Missouri.

May 17, 1955.

Motion to Modify Opinion Denied June 10, 1955.

Hullverson & Richardson, James W. Jeans, St. Louis, for appellant.

J. Porter Henry, Robert D. Evans, Walther, Hecker, Walther & Barnard, Herbert E. Barnard, St. Louis, for respondent.

HOUSER, Commissioner.

This is a suit for damages resulting from the creation of a private nuisance. A trial jury returned a verdict for Tom A. Fuchs and against Curran Carbonizing and Engineering Co., Inc. for $4,500 and judgment was rendered accordingly by the Circuit Court of St. Louis County. The trial judge ordered the verdict and judgment set aside and sustained defendant's motion for a new trial on the ground that Instructions Nos. 1 and 7 were misleading, improper, confusing and at variance with the cause of action pleaded. From that order plaintiff has appealed.

Plaintiff's petition was in two counts. Eliminating caption and prayer, Count One follows:

'I.

'Comes now the plaintiff and states that he is, and at all times hereinafter mentioned was the occupant of premises located at 742 E. Big Bend, Crestwood, Missouri, and that the same premises serve as a home for the plaintiff and his family and also located therein is a bar and restaurant known as the Grantwood Tavern.

'II.

'Plaintiff further states that the defendant operates a commercial plant at 750 E. Big Bend, Crestwood, Missouri, and that the said plant is in close proximity to the home and the business establishment of the plaintiff.

'III.

'Plaintiff further states that commencing on or about the summer of 1951 certain noxious, deleterious, harmful, foul and ill smelling fumes and gases were caused to be emitted from the said plant of the defendant, and that these fumes, and gases, have been so emitted up to the present date so as to create and cause a nuisance and render the premises of the plaintiff unhealthy, dangerous and unfit, for the maintenance of plaintiff's home and business.

'IV.

'As a direct result of the creation and continuance of the aforesaid unisance plaintiff's eyes, nose, throat, bronchia, lungs and respiratory system and the membranes, tissues, muscles, tendons and flesh thereof were severely inflamed, irritated, swollen, and infected. Plaintiff has suffered from shortness of breath, sneezing, wheezing, loss of appetite, nausea, nervousness and insomnia. All of the aforesaid injuries are painful and permanent. Plaintiff has incurred medical expenses and in the future will incur further medical expenses. Plaintiff has suffered diminution of his business and loss of earnings therefrom.'

Count Two was based upon negligently causing the emission of noxious fumes, but no evidence of negligence was introduced and a motion for a directed verdict on Count Two was sustained at the conclusion of plaintiff's case. No point is made in this connection on this appeal.

From 1943 to 1953 plaintiff operated a tavern near Lindbergh and Big Bend Roads in St. Louis County. The business was conducted in a concrete block building located on a 7-acre tract which plaintiff occupied as a month-to-month tenant of Forest Park Lumber Company. The building consisted of a dining room, barroom, kitchen and two back rooms in which plaintiff, his wife and a teen-age daughter lived. Defendant operated a coal-testing plant in a nearby building located on the same tract approximately 130 feet south of the tavern. The area was zoned 'light industrial.' Other nearby commercial property included the Gan coal yard and filling station, located about 115 feet east of the tavern, a railroad spur east of the coal yard, and the Sapo-Elixir Chemical laboratory east of the tracks. Located northwest and across Big Bend Road from plaintiff's tavern is Yacovelli's restaurant and tavern.

Plaintiff's evidence showed that beginning in 1951 and continuing until May 31, 1953 strong, ill-smelling and nauseating fumes, smoke and gas emanated from defendant's coal-testing plant and came onto the premises of plaintiff. Thick yellow-brown smoke would settle to the ground and invade the building on plaintiff's premises. This occurred two or three times a week, depending on how the wind was blowing. The odor and gas would persist for several hours of the day, and during the night. The condition became progressively worse and was 'very bad' in 1953. The odor was variously described as that of tar, rotten cabbage, sulphur, bottling gas, and muriatic acid. It was nauseating and induced a choking feeling. Prior to the time the fumes commenced plaintiff had never had trouble with his throat but afterward he got hoarse and had a sore throat for two years. His throat would become so sore that he would not want to talk. He went to four doctors. Dr. Seabaugh treated him several times. Dr. Alden, a nose and throat specialist, treated him for 12 to 15 months. Plaintiff made a dozen trips to Dr. Stutsman. A Dr. Koch, a nose and throat specialist, treated him. Plaintiff could not enjoy his meals on account of the fumes, which also 'interfered' with his wife and daughter and made them 'very ill, many times.' It nauseated plaintiff's wife, interfered with her sleeping, produced coughing and sickness. For relief she would put a wet towel over her face and head. Plaintiff's wife would get sick every time the fumes were discharged. The daughter could not have her girl friends to visit her at her home because of the embarrassment arising out of the nauseating odors. Various tavern customers testified that their enjoyment of the tavern was interfered with by the odors; that they 'couldn't stand it;' that it was 'too much for them;' that they 'almost choked to death;' and that on occasions they would leave the tavern because of the odors. Plaintiff received many complaints from the regular customers concerning the smells. They would complain every time they came in. They would inquire whether plaintiff was cooking with garbage and burning old tires. One customer became nauseated and ill and had to leave the premises without finishing her barbecue. Plaintiff testified that the smells not only interfered with business inside the tavern but also with the customers playing horseshoes on the outside; that people were 'staying away.' Although plaintiff's business increased through 1951 it fell off toward the end of 1952 and continued to fall off during 1953. There was testimony that it was embarrassing to wait on the customers because of the odors. Plaintiff complained to the officials of the municipality. An investigation resulted in the issuance of a summons to an officer of defendant company, who was charged in city court with operating a public nuisance by allowing the escapage of gas and smoke.

Defendant's evidence indicated that the amount of smoke emitted during the test of coal was inconsequential; that the fumes were so dissipated in the atmosphere that they would not affect a person 150 feet away from defendant's plant, and that the characteristic odor was not harmful to persons; that neither the employees at the defendant plant nor the employees of various businesses operated in the immediate vicinity were affected or made sick by the gases or fumes emanating from defendant's plant. Further, that no complaints were received from any of the employees working in nearby business places. A gardener who lived 150 feet from defendant's plant testified that he paid no attention to fumes and gases; that one morning he saw a little smoke coming from defendant's plant but that it was not hurting anything; that although he worked around there all the time the odors did not interfere with him or his gardening.

On this appeal defendant makes the point that plaintiff did not make a submissible case and that the court should have directed a verdict for defendant; that there was no evidence showing that defendant's acts caused a nuisance or that plaintiff was damaged as a result of personal injury caused by a nuisance. Proof of the emission of noxious and odoriferous fumes and gases which invaded and settled on plaintiff's premises in sufficient quantity, frequency and intensity to destroy plaintiff's enjoyment of his food, to induce a choking feeling, hoarseness, and a persistent sore throat requiring extensive medical attention, to prevent his wife from sleeping in a normal manner, to make plaintiff's wife and customers ill, to embarrass his daughter in the use of her home, and to drive away custom and trade, under the circumstances shown, made a submissible case based on nuisance. There was no error in overruling defendant's motion for a directed verdict at the close of defendant's case. Clark v. City of Springfield, Mo.App., 241 S.W.2d 100; Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728; Bradbury Marble Co. v. Laclede Gaslight Co., 128 Mo.App. 96, 106 S.W. 594; Powell v Brookfield Pressed Brick & Tile Mfg. Co., 104 Mo.App. 713, 78 S.W. 646; United States Smelting Co. v. Sisam, 8 Cir., 191 F. 293, 112 C.C.A. 37, 37 L.R.A.,N.S., 976; 4 Sutherland on Damages, 4th Ed., 3890; 1 Wood on Nuisances, Sec. 1.

Defendant further contends that plaintiff as a month-to-month tenant had no vested right of continuing occupancy and could not recover for interference with the use of rented premises. Under the case of Ellis v. Kansas City, St. J. & C. B. R. Co., 63 Mo. 131, plaintiff as the occupant and in the rightful possession of the premises had the right to maintain an action for damages occasioned by the maintenance of a private nuisance. And see 66 C.J.S., Nuisances, Sec. 82 b., page 838.

The trial judge ruled that Instructions Nos. 1 and 7 were misleading, confusing and at variance with the cause of action pleaded. They are as follows:

'No. 1.

'The Court instructs the jury that the plaintiff, Tom Fuchs, had a right to the peaceful and uninterrupted...