George v. Standard Slag Co.
| Decision Date | 14 June 1968 |
| Citation | 431 S.W.2d 711 |
| Parties | Paul A. GEORGE et al., Appellants, v. STANDARD SLAG COMPANY, Inc., Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
C. B. Creech, Stanley Hogg, Ashland, for appellants.
Michael R. Dowling, Diederich & Hermansdorfer, Ashland, for appellee.
A jury returned its verdict in favor of the owners of 25 residential properties in Ashland against Standard Slag Company, Inc., for damages attributed to air pollution emanating from Standard's nearby slag plant. The owners appeal from a judgment n.o.v. for the defendant company. The judgment conditionally directs a new trial in event of a reversal. CR 50.03. It is our conclusion that a new trial should be had, principally because the verdict on its face, when construed in the light of the evidence, appears to be inconsistent with the instructions and thus contrary to law.
As the alleged nuisance is permanent in nature, the correct measure of damages is the resulting diminution in market value of the respective pieces of property, 1 and the jury was clearly instructed to that effect, with the additional caveat that 'in arriving at this result you will not award any damages for (a) Air pollution by dust, odors or noise which ordinarily, normally and reasonably would be expected from industry, including defendant's business, or the area, or (b) For personal discomfort, annoyance or sickness to plaintiffs, or either of them, this action being only an action for diminution of the market value of the plaintiffs' property as measured by these instructions and the evidence of discomfort, annoyance or sickness of plaintiffs * * * goes to you only for the purpose and you can consider it only for the purpose of considering whether and to what extent the property of plaintiffs * * * has been depreciated in market value, if any,' etc. 2
Two forms of verdict were submitted to the jury with the instructions, one finding for the defendant and the other for the plaintiffs. The one finding for the plaintiffs listed the 25 pieces of property individually and called for a 'before value,' an 'after value,' and a 'difference' for each. When the jury returned its verdict, signed by the foreman, no 'before' or 'after' values had been inserted, but a 'difference' of $1200 was indicated for each property. At the same time and as a part of the verdict the court was given a separate piece of paper, also signed by the foreman, bearing the following handwritten explanation:
'We the jury in consideration of all the evidence and circumstances agree 100% that the Standard Slag Company operated its business in a negligent manner producing air pollution by dust, odor, and noise as to cause the plaintiffs for (sic) personal discomfort and annoyance.
'So we award in each case the total sum of $1,200.
'The jury would like to state as a body that (we believe this award be in terms that) we believe this award be in terms of air pollution only, that the dust in the past 2 or 3 years did not damage their homes.'
It was noticed at once that in three instances the award of $1200 exceeded the amount authorized by the testimony, and after a conference in chambers between counsel and the court the jury was sent out to make appropriate corrections, which it did. No other motion for correction of or objection to the verdict was offered before the jurors were discharged. Later, in its motion for judgment n.o.v. or a new trial, the defendant company took exception to the verdict on the basis of its form and content, asserting that it was inconsistent and not authorized under the instructions.
Counsel for the property owners contended and still contend that the verdict was neither inconsistent nor unauthorized, and in support of a motion for judgment on the verdict they tendered affidavits by nine of the jurors to the effect that the awards were for diminution in market value of the property as the result of air pollution, that such pollution had not caused physical damage to any of the property but had reduced its value.
The trial court at first entered an order granting a new trial on the ground that 'the uncertainty and conflict' in the verdict was such that neither side could be granted a judgment. The affidavits of the nine jurors were disregarded as tending to impeach the verdict. Thereafter, on its own motion the trial court rescinded the order directing a new trial and entered the judgment n.o.v. from which this appeal is taken. It is apparent from an explanatory statement placed in the record by the court that the purpose of this change was to provide the plaintiffs an appealable order and secure a ruling from this court before subjecting the parties to another trial.
The defendant company concedes that uncertainty and conflict in the verdict would not authorize a judgment n.o.v. in its favor, 3 but now takes the position that it was entitled to a judgment on the verdict (as distinguished from judgment notwithstanding the verdict) because the specific finding of no damage to the property overrides and refutes the general finding for the plaintiffs. In other words, it seems clear to counsel for the company that the jury found no damage, physical or otherwise, to the property, but mistakenly tried to award damages for personal annoyance and discomfort.
Counsel for the appellant property owners are equally certain that there is no ambiguity in the verdict. They say, in fact, that the affidavits of the nine jurors did not tend to impeach the verdict, but were in aid and explanation of it. 4
We might agree that the verdict was not necessarily defective except for one damning circumstance. All of the valuation evidence in the case was given by three witnesses, one for the property owners and two for the company. The witness for the property owners testified that in his opinion each of the properties had been reduced in market value by 25%. The expert witnesses for the company denied that any of the property had diminished in value. According to the estimates of the witness for the plaintiffs, their various parcels ranged in value, before the nuisance, from $3,950 to $12,950. Similarly, the values assigned by the company's witnesses ranged between $3,200 and $10,250. Since, therefore, the only witness who testified to a reduction in value was of the opinion that all the property suffered the same percentage of loss, there simply was no basis in the evidence for an award of $1,200 apiece. Obviously this result must have reflected something other than diminution of market value, and for that reason alone the verdict was fatally erroneous on its face.
If the portion of the verdict written on the separate piece of paper had stated in so many words that the jurors found no reduction in or damage to the value of the property, the defendant company's theory that it was entitled to a judgment on the verdict would have merit. But we have the same reaction to the verdict as did the trial court. We have no firm conviction as to just what the jury was attempting to say. Indeed it seems probable that they did not grasp the full meaning and significance of the instructions.
It is strongly argued in behalf of the appellant property owners that the defendant company waived the defects in the verdict by failing to object before the jurors were discharged. In Anderson's Executrix v. Hockensmith, Ky., 322 S.W.2d 489 (1959), a distinction in this respect was drawn between a defect in form and one that 'is of the substance and...
To continue reading
Request your trial
-
ESTATE OF UNDERWOOD v. NATL. CREDIT UNION
...may waive appellate review but will not prevent trial judge from exercising discretion to grant new trial); George v. Standard Slag Co., 431 S.W.2d 711, 714 (Ky. 1968) (because there was no evidentiary basis for jury's award of equal amounts to all claimants, failure to object before jury w......
-
Arnoldt v. Ashland Oil, Inc.
...and substantial annoyance and thereby caused the fair market value of the property to be materially reduced. See George v. Standard Slag Co., 431 S.W.2d 711, 715 (Ky.1968), overruled on other grounds, Southeast Coal Co., Inc. v. Combs, 760 S.W.2d 83 (1988). As was recognized in Louisville R......
-
Rockwell Intern. Corp. v. Wilhite, 1997-CA-000188-MR.
...Co. v. Charles, Ky., 514 S.W.2d 659, 662 (1974). Model jury instructions detailing these factors can be found in George v. Standard Slag Co., Ky., 431 S.W.2d 711, 715 (1968). 104. Kentland-Elkhorn, id., lists this factor as "its importance on the growth and prosperity of the 105. Section II......
-
Smith v. Carbide and Chemicals Corp., 2005-SC-000686-CL.
...shown, the diminution in fair market value is a recognized measure of damages. Ellison, 32 S.W.3d at 69; see also George v. Standard Slag Co., 431 S.W.2d 711, 712 (Ky.1968) (providing for a measure of damages). The preliminary question in a contamination case in Kentucky is at what level do......