Gardner v. Int'l Shoe Co.

Decision Date11 May 1944
Docket NumberNo. 27403.,27403.
Citation386 Ill. 418,54 N.E.2d 482
CourtIllinois Supreme Court


Action by Deward H. Gardner and others against the International Shoe Company for interference with the use of plaintiffs' respective homes caused by odors produced in the operation of defendant's factory. Separate judgments for the various home owners were reversed by the Appellate Court, 319 Ill.App. 416, 49 N.E.2d 328, and plaintiffs appeal.

Affirmed.Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; Alfred D. Riess, Judge.

Whitnel, Browning, Listeman & Walker, of East St. Louis, and Manuel M. Wiseman of Alton, for appellants.

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 appellee.

GUNN, Justice.

Deward H. Gardner and wife, owners of a house and lot in the village of Hartford, filed a complaint in the circuit court of Madison county against International Shoe Company to recover damages for interfering with the use, occupation and enjoyment of their home because of unwholesome smells and odors produced by the nearby International Shoe Company in the operation of its plant. Eight other owners and their wives joined as parties plaintiff, each alleging the same damage from the same causes, and all cases were tried together, resulting in separate verdicts in favor of the occupants and owners of the nine different premises described in the complaint. Judgments were entered on these verdicts by the circuit court. On appeal to the Appellate Court for the Fourth District the judgments of the circuit court in each case were reversed without remanding. The Appellate Court granted a certificate of importance to this court.

The facts with respect to each plaintiff are, respectively, set forth in nine separate counts. After setting out the ownership of the premises and the nearby location of the defendant's plaint it is alleged that defendant operates a factory in which the hides of animals are tanned and cured and leather is produced for shoes and other purposes; that from nine hundred to one thousand persons are employed daily, and that in the operation of the factory the defendant controls and maintains an open sewage pond or pool within the village of Hartford, which contains waste material and chemicals and raw sewage, which is afterwards drained into the river; and that the operation of said pond creates quantities of chemicals, gases, odors, fumes and irritating vapors in the air, which are irrritating vapors in the air, which are dependent to a certain extent upon the character of the operation of the factory and atmospheric conditions, and said odors and fumes are unwholesome, irritating, foul smelling, nauseating and deleterious to the health of the public and to plaintiffs in particular, and wrongfully, improperly and unlawfully interferes with the wholesome enjoyment of plaintiffs' premises; that defendant has been requested to abate the nuisance, and has failed to do so, and because of such improper conduct plaintiffs have been disturbed and denied the healthful enjoyment of their homes.

The defendant's answer neither admits nor denies the allegations with respect to plaintiffs' ownership, but admits it is a corporation and as such owns a factory site and has operated it for twenty-three years, that in such plant hides of animals are cured and tanned for the purpose of making leather, and that it employs approximately nine hundred to one thousand persons; admits that in connection with the operation of the factory it owns and controls a pond, into which waste material is emptied, which contains some chemicals and some sewage; alleges that the chemical content of affluent emptied into the pond is so slight as to make it almost imperceptible, that a small amount of sewage from cafeteria and toilets is drained into the pool which is ninety-five per cent water that has been used to wash hides to remove foreign substances, and that such substances are taken up by screens, leaving a slight amount of organic matter in the water which goes into the pond, that the maintenance and operation of the pond are necessary to the tannery, and that same was built at large expense under conditions and restrictions imposed by the Sanitary Water Board of the State of Illinois. It denies that, in the operation of the factory, the matter going into the pond causes gases, odors, fumes, or other unwholesome and irritating matter in the air so as to deprive plaintiffs of the wholesome enjoyment of their homes; admits that some odors arise from the operation of the tannery and the pond, but which are only usual, ordinary and incident to the tannery, and that such odors and smells are not harmful, deleterious, unwholesome, noisome, unclean, irritating or detrimental to health, and that the factory was at its location long before the homes of the plaintiffs were built, and that such homes were located with full knowledge of the odors peculiar to the tannery of the defendant.

The answer further alleges that the factory and pond are in an industrial community, and in the same district are located a large number of factories and manufacturing plants, including oil, fertilizer and refining, and each in its turn emits odors peculiar to its business, and that whatever odors are noticeable are slight and only incidental to the life in an industrial community. The answer then describes the location of the pond, alleges that it was located and built by order of the Sanitary Board of the State of Illinois, and that such odors as arise, if any, are not such as would entitle the plaintiffs to recover. A reply was filed by the plaintiffs in which they denied every matter of defense set out in the answer.

Thus it appears the pleadings consist of a complaint in which it is alleged foul odors caused by the improper operation of the defendant's plant deprive the plaintiffs of the wholesome enjoyment of their homes. The answer, in addition to denying improper operation of the plant and the production of the odors in question, affirmatively shows that all of the parties reside in an industrial community in which are various odors consonant with the life of the community, and alleges that this, being the only matter of which plaintiffs complain, is not the subject of damages, because the odors are necessary to industry and are a part of the conditions under which all persons in the community live. Everything in the answer is denied, so the issue on one side is foul odors, and on the other odors justified as being reasonably necessary to the industrial community in which the plaintiffs reside.

In addition to the plaintiffs, who all testified, were two other residents of Hartford. After describing the location of their various homes, which were from 400 to 700 feet distant from the pool or basin, the principal testimony offered was as to the degree, character and foulness of the smell, which is claimed to emanate from the premises of the defendant. The descriptive words given to these odors depend largely upon the extent of the vocabulary of the witnesses, and their ability to express the effect the odors had upon the enjoyment of their homes. The inference gathered from many of these witnesses is that the pond contained sewage and flesh from hides and other matter causing odor by decay or putrefaction. Various degrees of physical discomfort are narrated, but there is nothing to show that anything of a physical nature was deposited upon the premises, other than the claim that vapors arose from the surface of the pond which would, of course, occur from any large mass of water at different times of the year, when the temperature of the air and the water varies. The claim of these witnesses is that the odor was different from the tannery smell, which had existed in prior years, and was caused entirely by the matter deposited in the pond.

The testimony of the witnesses for the defendant as to the amount and the noisome nature of the odors is in direct conflict. Twenty residents of the village, most of whom are not in any way connected with the defendant, testified the odor of the pond was substantially the same as the odor emanating from the tannery before the construction of the pond, and that it was not foul, offensive, or deleterious to health. In addition to the resident witnesses a sanitary engineer, a doctor from the Hygienic Department of the State of Illinois, and an officer of the labor organization to which the workers in the defendant's factory belonged, also testified.

The evidence shows the defendant's plant is operated in the usual and customary manner of tanneries; that it prepares hides for leather to be used in shoes; that a very large quantity of water was used in this process, both before the pond was established in 1938 and since that time. Measurements were made by the sanitary engineer before and after the building of the pool or basin of the constituents of the waste products. After the pool was constructed 1,341,000 gallons of water and waste flowed into and through the pool daily. This contained on the average 9,480 pounds of suspended solids; 57 per cent of these solids were inorganic, consisting principally of lime. This would leave approximately 4,000 pounds of organic matter which would be suspended in over 10,000,000 pounds of water, or an average of about one pound of organic matter to eight or nine barrels of water. The sewage matter coming from toilets included in this organic matter was about one pound to every 200,000 pounds of water. The pool was 1,200 feet long and 275 feet wide, and the flow from the outlet end was the same as that which came in, so, to a certain extent, the water was moving slowly all of the time.

The principal use of the water was to wash the hides. They were washed eight times;...

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