Gray v. Southern Facilities, Inc.

• Decision Date: 31 August 1971
• Docket Number: No. 19280,19280
• Citation: 183 S.E.2d 438,256 S.C. 558
• Court: South Carolina Supreme Court
• Parties: James P. GRAY, Jr., Appellant, v. SOUTHERN FACILITIES, INC., and D. L. Webster, Respondents.

Page 438

183 S.E.2d 438

256 S.C. 558

James P. GRAY, Jr., Appellant, v. SOUTHERN FACILITIES, INC., and D. L. Webster, Respondents.

No. 19280.

Supreme Court of South Carolina.

Aug. 31, 1971.

James B. Stephen, Spartanburg, for appellant.

Butler, Chapman, Parler & Morgan, Spartanburg, for respondents.

MOSS, Chief Justice.

James P. Gray, Jr., the appellant herein, instituted this action against Southern Facilities, Inc., and D. L. Webster, the respondents herein, alleging that on July 30, 1969, as a result of their negligence, carelessness and recklessness in the operation of certain gasoline storage tanks, gasoline was pumped into Four Mile Creek and such was later ignited, resulting in a fire which caused damage to his property, the smoking of his home, great depreciation in the value of his property, and depriving him of the full enjoyment and use of his residence.

The respondents, by their answer, admitted so much of the complaint as alleged that on July 30, 1969, they pumped certain petroleum products into Four Mile Creek and such flowed down stream and was later ignited, resulting in a fire, but denied any liability therefor to the appellant.

This case came on for trial before The Honorable Wade S. Weatherford, Jr., presiding judge, and a jury, at the 1970 June Term of the Court of Common Pleas for Spartanburg County. At the conclusion of the appellant's case, the respondents moved for and were granted an involuntary nonsuit on the ground that even though the respondents may have been negligent, careless and reckless, the appellant had sustained no actual or physical damages resulting therefrom and consequently he was not entitled to a recovery therefor. This appeal followed.

The appellant owns and resides in a duplex apartment in close proximity to Four Mile Creek. The appellant, with his family, occupies one side of the duplex and the other side is occupied by a tenant, and was so occupied at the time of the fire and at the time of the trial of this case.

Four Mile Creek flows in an easterly direction and in its course 'horseshoes' around the rear portion of the appellant's duplex. There is a wooden bridge across Four Mile Creek between 2/10 and 3/10 of a mile east of the appellant's duplex. Some distance upstream from the duplex of the appellant, the respondent, Southern Facilities, Inc., owns and maintains gasoline storage tanks and on the day of the fire D. L. Webster was managing and in charge of such storage tanks. Three other petroleum companies have gasoline storage tanks adjacent to Four Mile Creek and also upstream and west of the properties of the appellant and the respondent.

It appears that on July 30, 1969, D. L. Webster, in the process of separating or removing accumulated water from a gasoline storage tank, by mistake, pumped approximately four hundred gallons of gasoline into Four Mile Creek. The gasoline flowed downstream and passed the appellant's property and became partially slowed up or dammed behind debris at the bridge hereinbefore referred to. Thereafter, the gasoline was ignited by unknown means and burned upon the surface of the creek for a distance of several hundred feet on each side of the bridge. According to an eye witness the fire burned for about two hours, causing damage to trees and shrubbery along the bank of the creek for several hundred feet before being brought under control and extinguished by fire fighting units. The father of the appellant, who lives next door, testified that the fire did not damage his son's property or home but the stream shortly after the fire had a greasy or oily appearance.

The appellant, testifying in his own behalf, estimated that because of the fire the value of his property had been decreased in the amount of $6,000.00. This testimony was given in the absence of the jury and over the objection of the respondents. As to whether or not there was any damage to the appellant's residence, the following is taken from the record:

'The Court: Before we get into that, let's get Mr. Gray to say whether or not there was any physical damage done to his land or the building on it.

'Q. Your house has a heat pump and it is air-conditioned?

'A. Yes, sir.

'Q. It was closed up that day?

'A. Yes, sir. It has storm windows on it also.

'Q. All right. Was there any visible physical damage as far as vegetation or burning or anything like that?

'A. Not on my property. There was not any flame being ignited. There was petroleum product on the creek on the edges of my property which was on the creek, and there was heavy smoke throughout the whole neighborhood down along both creek banks.

'Q. Were there fumes, the fumes heavy?

'A. Yes, sir, fumes very heavy. You could tell the odor. The odor had been there before.

'The Court: That was in the area generally now and did not get into your home?

'A. The odor came up out of my creek which is ten feet from one corner and 20 feet from the other corner.

'The Court: Have you had to incur any expense in order to make repairs on your property, such as painting the outside for smoke damage, or having the inside fumigated for gasoline odor damage. That's what we are trying to get at.

'A. No, sir.'

Even though the appellant testified that gasoline fumes were present in the neighborhood, he did not say they were noxious or offensive to him or that such caused him any discomfort, illness, annoyance or inconvenience. The appellant did not testify as to any diminution in the rental or usable value of his property.

In the absence of the jury, the appellant presented Leonard Still and T. B. Thackston, local real estate agents, as witnesses, and they testified as to how the fire had affected the value of his property. It was their opinion that prior to the fire the property had a value of $26,500.00 but after the fire its value had depreciated approximately 10%, or $2,650.00. On cross-examination of the witness, Still, he gave the following testimony:

'Q. And you believe the property has been damaged because of the fire, is that right?

'A. Mr. Chapman, I would like to say this, it does not have any physical damage, actual physical damage to the property but we are speaking of the damage to the resale value to the piece of property.

'Q. Now, if there were no way for petroleum products to get into this stream so there could be another fire there would be no damage would there?

'A. I can't say that for this particular reason: you may abate the possibility of petroleum products going into the stream, but it is another thing to convince the public that this has been done.

'Q. Suppose the plants were removed?

'A. That would be another matter of course.

'Q. All right. Now, in examining the lot and the property of Mr. James P. Gray, Jr., you found no physical evidence of the fire?

'A. No, sir.

'Q. No burned trees, shrubbery, and no smoke damage to the house?

'A. No, sir.

'Q. Now, you state that in your opinion this property has been devalued 10% Because of this history?

'A. Yes, sir, approximately.

'Q. This is really a damage to reputation of the property, wouldn't you say Mr. Still?

'A. Yes, to a degree, that's correct.

'Q. Well, you can't see it can you?

'A. No.

'Q. If you went out there today there would be absolutely no evidence that there had ever been a fire would there?

'A. No sir.

'Q. So what you are talking about is damage that people have in their minds because of a history of something that has happened?

'A. Yes, sir.

'Q. And damage through fear that this might happen again?

'A. That's about it, yes, sir.'

The witness Thackston, on direct examination testified as follows:

'Q. Do you have an opinion as to whether or not that duplex and the land on which it is situated, was depreciated in value after the fire, and as a result thereof?

'A. Well, the building and the property was not damaged by the fire, physically damaged. In my opinion--

'Q. How was it damaged then?

'A. It damaged, the value of the property was damaged, the resale value.'

On cross-examination the witness Thackston testified as follows:

'Q. Now, Mr. Thackston, I believe you say that the real damage to this property is due to the reputation to the area now that there has been a fire?

'A. That's right. There was no physical damage to the property at all, Mr. Chapman.

'Q. And now that there has been a fire, and you say people know there are petroleum facilities up the creek from this property?

'A. That's right.

'Q. As long as these petroleum facilities are there this property is going to be damaged in reputation?

'A. I think so, because nobody can say it won't happen again, Mr. Chapman.

'Q. So your opinion is based upon the assumption of a future discharge into the creek and a future fire?

'A. It is based on the assumption, I mean on the fact that they have had one and the assumption that there might be some more. Now if I know, Mr. Chapman that there would never be another fire, another discharge of petroleum in the area that would cause fire, there has been no damage.

'Q. Now you say you went into the house?

'The Court: That is the crux of the issue. He hit it right squarely on the head. It is based upon the possibility in the minds of the public, that's what he is saying, in the minds of the public, that it will occur again. All right, go ahead.

'Q. You went into the house?

'A. Sir?

'Q. You went into the duplex?

'A. Oh, yes.

'Q. And you found no physical evidence of smoke damage?

'A. No, no damage to the house and I saw no damage to the stream.

'Q. Or the undergrowth or the trees?

'A. No.

'Q. If you hadn't known about the fire before you went out there you would never have known there been one?

'A. That's right.'

We have carefully reviewed all of the testimony in this case and fail to find therefrom that the appellant's duplex or property was in any manner damaged by fire, smoke or fumes which were emitted from Four Mile Creek on July 30, 1969. On the contrary there is ample evidence that no physical damage was done to appellant's...