Greene v. Spinning

• Decision Date: 07 December 1931
• Docket Number: No. 17034.,17034.
• Citation: 48 S.W.2d 51
• Parties: GREENE et ux. v. SPINNING et al.
• Court: Missouri Court of Appeals

48 S.W.2d 51

GREENE et ux. v. SPINNING et al.

No. 17034.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Rehearing Denied February 1, 1932.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

Suit by Artie L. Greene and wife against Frank S. Spinning and others. Decree for plaintiffs, and defendants appeal.

Reversed and remanded, with instructions.

D. C. Chastain, of Butler, J. S. Brierly, of Harrisonville, L. J. Lyons, of Kansas City, and R. H. Wills, of Tulsa, Okl., for appellants.

T. N. Haynes, of Harrisonville, and Harry G. Kyle and Walter A. Raymond, both of Kansas City, for respondents.

BLAND, J.

This is an appeal from a decree enjoining the operation of defendants' filling station, located in the city of Pleasant Hill, on the ground that its operation constitutes a nuisance.

The facts show that plaintiffs are husband and wife and are the owners by the entirety of five lots, or about two and one-half acres of ground, adjoining the filling station on the north and situated in the northeast part of the city. Plaintiffs' property is in the city limits but the neighborhood is not thickly built up. While it is in a residence section, there is a slaughter house about two blocks away and a greenhouse in the neighborhood. They had been the owners of the property and lived there about twelve years prior to the trial of this case, which took place in the month of July, 1930. The house is two stories in height, has six rooms, and is of frame construction. It faces west on United States Highway No. 7 and is located about ten feet from the property line. The highway is from 60 to 80 feet in width and is paved in the center with concrete 18 feet wide. It connects Pleasant Hill with United States Highway No. 50. It is the road from Pleasant Hill to Kansas City and is heavily traveled, there being about 1,200 cars passing plaintiffs' house every day. Plaintiffs' house has a front porch about 8 feet wide and 25 feet in length as well as a side porch. The house does not have water or an indoor toilet but is equipped with a modern heating plant. It has 3 large windows on the first floor, south side, and the same number of large windows on the second floor, south side, in the south bedroom. Plaintiffs live in the house with their five minor children. Mrs. Greene, one of the plaintiffs, slept in the sitting room down stairs directly under the three windows on the south side of the house. Two of the daughters slept in the bedroom upstairs directly in front of the three windows there.

Plaintiffs have a well located at the southeast corner of the house and under the south porch. The well is about 25 feet deep and, prior to the matters complained of in the petition, it was never failing, afforded excellent drinking water and was the only source of water for plaintiffs' household and drinking purposes. On the property is also located a barn, hen house and outside toilet, which were from 72 to 100 feet northeast of the house.

The south line of plaintiffs' property is 72 feet north of an east and west street or road 40 feet in width, crossing Highway No. 7. The cross road, at the time of the matters complained of, was surfaced with cinders west of the paved highway. At the time of the trial it was oiled on both sides of Highway No. 7. There is a dispute in the testimony as to the amount of traffic upon this cross street or road. Plaintiffs' evidence shows that it was little traveled and defendants' that it was much traveled. This 72 feet of space between plaintiffs' property and the east and west road is owned by the defendants, Spinning, and it is upon Spinning's property that the filling station in controversy is located.

Plaintiffs purchased their property before Spinning acquired his. He first erected a frame house on it but in the summer of 1928, when he learned definitely that Highway No. 7 was to be paved, he decided to build a filling station and grocery store building upon his property. He invested $1,500.00 to $2,000.00 in the building and, when it was completed, opened the filling station and grocery store with a stock of groceries costing about $240.00. At the time of the trial the grocery stock amounted to about $500.00. He moved his frame house to the rear of the lot and during the summer months he constructed the station.

The evidence shows that this station is a one story building 18 × 20 feet; that it is located about in the center of Spinning's lot which is 72 feet north and south by 250 feet east and west; that it is set on a concrete foundation with a basement; that it faces west and there is a canopy or porch 18 feet square which extends to within 8 or 10 feet of the east property line of Highway No. 7. Two gasoline pumps are located at the edge of the canopy. There is a paved road or trafficway between the building and the pumps and extending on 8 feet beyond the pumps toward the highway. The testimony shows that the edge of the canopy is "about on the line with the front porch" of plaintiffs house.

The evidence also shows that there is a woven wire fence 4 feet in height between plaintiffs' and Spinning's property; that there is located about 25 feet south of plaintiffs' house, upon Spinning's property, a grease rack where cars are serviced with oil and minor repairs are made.

In September, 1928, Spinning began the operation of the filling station under an oral agreement with the Land Petroleum Company (hereinafter called the Land Company) which furnished the grease and oils for the station. This agreement later was reduced to writing in three separate instruments, dated March 6th, 1929.

On April 13th, 1929, defendant, Mid-Continent Petroleum Corporation (hereinafter called the Mid-Continent Company) succeeded to the Land Company and took over the relationship that that company sustained to Spinning.

It is claimed by plaintiffs that these writings and the conduct of the parties in carrying out their provisions, constituted Spinning agent of the Land Company and subsequently, on April 13th, 1929, the Mid-Continent Company. This is strenuously denied by the latter. We will not at this time discuss the nature of these writings but will refer to them later on in the opinion in connection with the contention that Spinning was the agent of the Mid-Continent Company.

The filling station had but one gasoline tank prior to the time that the Mid-Continent Company took over the contracts of the Land Company. This was a 550 gallon tank buried south of the station. Prior to the change from the Land Company to the Mid-Continent Company gasoline appeared in a well on the Spinning property located about 28 feet to the rear of the filling station and about 60 feet south and 15 or 20 feet east of plaintiffs' well. It was found that gasoline was leaking from the overflow pipe connecting the gasoline bowl on the top of the pump with the tank and this leak was repaired by the Land Company as soon as it was located.

Immediately after succeeding to the Land Company the Mid-Continent Company installed another tank and pump on the north side of the station. This tank had a capacity of 550 gallons and was a second-hand one, being rusty and badly dented. The evidence shows that it is 46 feet and 3 inches from plaintiffs' well to the center of the north tank and from the center of the north tank to the center of Spinning's well it is 27 feet 8 inches. The evidence shows that the south tank was filled with clear gasoline and the north tank with high test gasoline stained with a red dye.

About July 4th, 1929, plaintiffs' family began to notice that there was something wrong with the taste of the water in their well. They did not know what the trouble was and did not suspect that gasoline was getting into their well until August 19th, when the water became so bad that they were unable longer to drink it. They concluded from the appearance and taste that it was contaminated with gasoline. The water upon being drawn out of the well would have a reddish cast and oil on top. During the time that they were drinking the water, following July 4th, it would make them sick, irritate their mouths, make their mouths and throats sore, cause nausea, affect their kidneys and make them nervous. No doctor was called. Mr. Greene and one of the children had a siege of boils. Plaintiffs' expert testimony shows that drinking water polluted with gasoline will not directly cause boils but may so weaken the system as to make one a prey to boils.

Plaintiffs notified Spinning and a Mr. Higgins, the local representative of the Mid-Continent Company, of the presence of gasoline in their well. Mr. Higgins promised to come and settle for the damage but waited 17 days before coming. When he got there Mrs. Greene told him that "he had taken his time and he said he couldn't be every place at once, and I said that we had no drinking water and he said why couldn't you carry water and I said very well I will settle with you in court." Thereupon, Higgins and Spinning left. Plaintiffs and their family did not use the water from their well after August 19th, except for washing and scrubbing, and discontinued the use of it altogether about January 1, 1930. After August 19th, they carried their water from across the road about 400 feet distant, where they procured it from a well where Spinning lived. This suit was filed on October 22d, 1929.

There is a dispute in the testimony as to whether or not there was actually any gasoline in plaintiffs' well but the weight of the testimony shows the presence of gasoline. However, the undisputed testimony shows that the well contained a dangerous amount of B Coli, for the presence of which defendants had nothing to do. It is not seriously contended that if there was gasoline in the well that it did not come from the north tank of the filling station installed by the Mid-Continent Company.

There was evidence tending to show that at the time the case was tried there was a slight odor of...