Gardner v. Int'l Shoe Co.

• Citation: 49 N.E.2d 328,319 Ill.App. 416
• Decision Date: 01 June 1943
• Docket Number: Gen. No. 42M7.
• Parties: GARDNER ET AL. v. INTERNATIONAL SHOE CO.
• Court: United States Appellate Court of Illinois

319 Ill.App. 416

49 N.E.2d 328

GARDNER ET AL.

v.INTERNATIONAL SHOE CO.

Gen. No. 42M7.

Appellate Court of Illinois, Fourth District.

June 1, 1943.

Appeal from Circuit Court, Madison County; Alfred D. Riess, Judge.

Action by Deward H. Gardner and others against International Shoe Company for damages allegedly caused by a nuisance. Judgments for plaintiffs, and defendant appeals.

Reversed and judgment entered for defendant.

STONE, J., dissenting. Chapman & Thomas, of Alton, Richard O. Rumer, of St. Louis, Mo., Charles E. Rendlen, of Hannibal, Mo., and Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellant.

Manuel M. Wiseman, of Alton, and Philip G. Listeman and Ralph D. Walker, both of East St. Louis, for appellees.

BRISTOW, Justice.

This is an appeal from eight judgments of $1,200 each and one judgment of $1,000 entered in the same case by the Circuit Court of Madison County, in favor of the plaintiffs in the trial court and against the International Shoe Company, appellant. The suit was brought jointly by eight husbands and wives and one individual to recover damages, charging appellant, who will be hereinafter referred to as defendant, with improper conduct in the operation of its tannery and a settling basin used in connection therewith, in the village of Hartford, Illinois, and alleging that as a result of such alleged improper conduct, the defendant necessarily caused odors which interfered with the plaintiffs' use, occupation, and wholesome enjoyment of their respective homes, and caused plaintiffs substantial damages peculiar to them.

The complaint consisted of nine counts, all of which were identical with the exception of names, description of property owned by the respective plaintiffs, and like matters. Each count alleged that the defendant, in the operation of its tannery, maintained a certain open sewage pond and that waste materials and chemicals used in the tannery, as well as raw sewage from the cafeteria and toilets were emptied into said pond and thereafter carried into the Mississippi River. It was further alleged that in the process of operation of said sewage pond by defendant, large quantities of chemicals, gases, odors, fumes and other unwholesome, noisome, unclean and irritating matters were emitted into the air from said pond and pervaded the air around plaintiffs' residences, and because of this, plaintiffs' use, occupation and wholesome and healthful enjoyment of their homes had been disturbed and denied them.

Defendant's answer admitted operation of the tannery, and the control and maintenance of the pond into which waste materials containing some chemicals and some sewage was discharged, but averred that the cafeteria and toilet sewage comprised less than five percent of the effluent drained into the pond and that ninety-five percent thereof was water used to wash hides from which foreign substances had been removed; that the pond was necessary to the operation of the tannery, and denied that large quantities of gases, odors, fumes and other unwholesome matters were emitted into the air from the pond. The answer further alleged that the community where plaintiffs resided was an industrial community containing other plants and factories, all of which emitted odors.

Amendment was made to the complaints charging that defendant maintained a pond which constituted a public nuisance and the odors from which interfered with the wholesome use of plaintiffs' premises.

Upon a trial of the issues before a jury, nine verdicts were returned finding defendant guilty and assessing the damages of the plaintiffs in each of the counts at $1,800. The trial court required a remittitur as to each verdict in the sum of $600, except as to the verdict in favor of plaintiffs Ralph and Pauline McReynolds, as to which latter verdict, it required a remittitur of $800. Motion for new trial was overruled, and the court entered judgment in favor of the plaintiffs named in each count in the sum of $1,200, except as to plaintiffs Ralph and Pauline McReynolds for whom judgment was entered in the sum of $1,000, from which judgments, defendant prosecutes its appeal to this court.

It is relied upon as error for the reversal of these judgments, that plaintiffs failed to plead or prove any cause of action at law which would entitle them to a judgment for damages against defendant. It is also contended on behalf of defendant that, because the evidence did not show any damage from the odor to the health of plaintiffs, and because of the fact that no smoke, soot, hides, hair or any substance of any kind was cast upon plaintiffs' premises, no action for damages can lie. It is also strenuously urged in that regard that private actions at law may not be maintained by a citizen against a person or corporation for the maintenance of a public nuisance unless he has shown personal damage peculiar to himself which is different from that suffered by the general public.

The Village of Hartford, in which plaintiffs and witnesses live, has a population of about 1,600 people, and is situated in the very heart of a great industrial area which extends for many miles along the east bank of the Mississippi River and opposite the metropolis of St. Louis, Missouri. In and near the village were a large number of oil refineries, lead works, and a fertilizer plant, numerous pig pens and outdoor toilets. In close proximity to the village is a Standard Oil Company refinery, the Wood River Oil and Refinery Company, a fertilizer plant, the White Star Refinery property, and also railroad tracks used extensively by the Alton, the Big Four, the Illinois Terminal, and the Litchfield and Madison.

The defendant has operated its tannery business within the city limits of Hartford for more than 24 years. During 1938-40, it employed 850 to 900 persons, and was engaged in tanning cattle hides and preparing leather for use in the upper portion of shoes. In the tanning process between 1,225,000 and 1,305,000 gallons of water are used daily in washing, soaking, and treating the “green salted” cattle hides which have been cured with salt for a period of about thirty days after the hides have been removed from the animal and before they are received at the defendant's tannery.

The hides are washed approximately eight times. The first washing takes off the loose dirt that may be hanging on the hides plus the salt that they contain. The next operation is what is called “soaking” and is done in clear water, and removes practically nothing from the hide, but is for the purpose of wetting the hide. The third washing is a chemical treatment which has for its purpose the loosening of the hair. The fourth washing has for its purpose the dissolving of the lime which the hides have absorbed. The fifth washing is to remove the remainder of the lime, and the sixth is a treatment in a solution of salt and sulphuric acid in the tanning process. The seventh treatment is with a chemical known as basic chromiumsulphate and salt which tans the hide. The next operation has two parts, one of which is the retanning of the hide with chromium sulphate and salt and then an operation in which the stock is dyed and in which oils and fats are introduced.

Tests made by the Illinois Department of Health showed that of the daily discharge of approximately 1,300,000 gallons of waste, there was approximately 9,480 pounds of suspended solid matter, most of which was finely divided, it having passed through a large self-cleaning rotary screen with a 3/16 to 1/4 inch mesh.

Until 1938 this effluvia or waste material was discharged into the Mississippi River. In 1936, the Illinois Department of Health made a study of the industrial waste problem in the Hartford-Wood River industrial district. They found that the solids contained in the industrial waste of these industries and others interfered with the water supply of the Cities along the Mississippi River to the south of Hartford. This study included a survey as to the volume and content of the wastes of the International Shoe Company tannery. As a direct result of this survey, the Sanitary Water Board of the State of Illinois required the International Shoe Company, as one of the industries contributing to the Hartford-Wood River industrial waste problem, to dispose of its waste in some manner for the purpose of removing the solids therefrom before passing the water into the Mississippi River.

The defendant, pursuant to the above order constructed a settling tank or basin about twelve hundred feet long, two hundred and seventy-five feet wide and five feet deep. This reservoir was constructed and located under the direction of the Illinois State Department of Health. It was built to meet their requirements after they had made an extensive study and comprehensive survey of the problem.

It also appears from the evidence that in addition to the waste passing into the settling tanks from the tannery, there was the passage of human waste from the toilets of the tannery and from a few small homes near by. Mr. Black, the senior sanitary engineer of the Illinois Department of Health, testified from actual tests made by him that only about fifty pounds of solid fecal matter was discharged into this basin per day, and at the same time there accompanied this flow, some ten million pounds of water. For every pound of solid fecal matter there was two hundred thousand pounds of water. It also appears in evidence that the tannery employs large quantities of lime in and about the processing and tanning of hides. It was estimated that there was approximately five tons of lime used daily. It is a matter of common knowledge that lime will aid materially in the killing of bacteria, and thus prevent decay and decomposition of solids which settle to the bottom of the tank. The foregoing is a rather comprehensive picture of the physical surroundings that beset the plaintiffs and defendant, at and during the time the controversy between them...