Jefferson Fertilizer Co. v. Rich

• Citation: 62 So. 40,182 Ala. 633
• Parties: JEFFERSON FERTILIZER CO. v. RICH et ux.
• Decision Date: 01 May 1913
• Court: Supreme Court of Alabama

62 So. 40

182 Ala. 633

JEFFERSON FERTILIZER CO. v. RICH et ux.

Supreme Court of Alabama

May 1, 1913

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by R.D. Rich and wife against the Jefferson Fertilizer Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Estes Jones & Welch, of Bessemer, for appellant.

Thomas T. Huey and William H. McEniry, both of Bessemer, for appellees.

DE GRAFFENRIED, J.

The plaintiffs, R.D. Rich and Della Rich, who are husband and wife, own, as tenants in common, a house and lot in the city of Bessemer, which is now, and for many years has been occupied by them as a home. After the above parties had begun to occupy said property as a home, the defendant, the Jefferson Fertilizer Company, bought a lot several hundred yards from said home, erected a fertilizer plant thereon and, since said plant was erected, has continuously manufactured fertilizers for commercial purposes there.

Mr. and Mrs. Rich maintain that, in the manufacture of fertilizers the defendant has constantly permitted offensive and noxious gases, which have a deadly effect upon plant life and a deleterious effect upon the roofs of wooden buildings (their home seems to be of wood and to be covered with wooden shingles), to escape into the atmosphere; that such gases have constantly permeated their home, filling it with pungent, unwholesome, and disagreeable oders, greatly injuring the property in its use as a home, destroying the vegetables in its garden, killing some of the fruit trees and rendering those not actually killed barren. Say the plaintiffs in their complaint as amended: "Before the location of the fertilizer factory of the defendant, the plaintiffs enjoyed their home with their family free from and undisturbed by fumes or odors of any kind, and their said home was reasonably healthy and enjoyable; that, since the location of defendant's said plant near their home, the defendant, in the operation and maintenance of its said plant, discharges into the air from its said plant nauseous, penetrating, irritating, and pungent odors or fumes; that defendant, in the operation of and maintaining of its said fertilizer factory, discharges into the air irritating and pungent gases, fumes, or odors; that said fumes, odors, or gases contaminate the air and pollute the atmosphere to a great distance from said plant, including the property where plaintiffs live and reside; that the plaintiffs are compelled to breathe and inhale the nauseous, pungent, penetrating, and irritating odors, fumes, or gases, and they are thereby greatly physically discomforted and inconvenienced; that they are thereby made to sneeze and cough and compelled to shut themselves within their house to avoid said fumes, gases, or odors; that said fumes, gases, or odors are deleterious to plant life and have caused plaintiffs to lose their trees, vegetables, vines, and flowers or to greatly injure the same; that said gases, fumes, or odors have greatly injured the plaintiffs' said property and depreciated value thereof."

1. As this suit was brought jointly by Mr. and Mrs. Rich, they were entitled to recover in this suit only that damage which they jointly suffered. The damage which they jointly suffered was the injury which occurred to them jointly in the use and enjoyment of the property as a home, in the injury which was done to their fruit trees on the property and otherwise to the property itself during the 12 months next preceding the bringing of the suit. They were not entitled to recover for any damages which accrued to them jointly, in the use and enjoyment of the property as a home, or which was done to their fruit trees or otherwise to the property itself more than 12 months before the bringing of the suit. All such damages were barred by the statute of limitations of one year. The nuisance complained of was a continuing one, and the plaintiffs were entitled to recover in this action any damages which they jointly suffered within 12 months before the suit was brought. Bigbee Fertilizer Co. v. Scott, 3 Ala.App. 333, 56 So. 834; Huss v. C.R. & B. Co., 66 Ala. 472.

In making out their case it was, of course, proper for the plaintiffs to introduce evidence tending to show that the noxious fumes from the defendant's plant destroyed their garden, injured their fruit trees, and created disagreeable odors on their premises and in their home during the 12 months next preceding the bringing of the suit. All the evidence was admissible as aids to the jury, if they found that the plaintiffs were entitled to recover, in ascertaining the amount of the plaintiffs' joint damages. Birmingham Water Works Co. v....