Jost v. Dairyland Power Co-op.

• Decision Date: 19 December 1969
• Docket Number: No. 135,135
• Citation: 45 Wis.2d 164,172 N.W.2d 647
• Parties: Andrew D. JOST et al., Respondents, v. DAIRYLAND POWER COOPERATIVE, Appellant.
• Court: Wisconsin Supreme Court

Page 647

172 N.W.2d 647

45 Wis.2d 164

Andrew D. JOST et al., Respondents, v. DAIRYLAND POWER COOPERATIVE, Appellant.

No. 135.

Supreme Court of Wisconsin.

Dec. 19, 1969.

Rehearing Denied March 3, 1970.

The action is one for damages for injury to crops and loss of market value of farm lands. The plaintiffs are farmers living within, or near, the city limits of Alma, Wisconsin. Their farms are located on the bluffs overlooking the Mississippi River. In 1947 the Dairyland Power Cooperative erected a coal burning electric generating plant at Alma. It is the contention of the farmers that consumption of high-sulfurcontent coal at this plant has increased from 300 tons per day in 1948 to 1,670 tons per day in 1967. There was testimony that the 1967 coal consumption resulted in discharging approximately 90 tons of sulfurdioxide gas into the atmosphere each day. There was substantial evidence to show that the sulphur-dioxide gas, under certain atmospheric conditions, settled on the fields, causing a whitening of the alfalfa leaves and a dropping off of some of the vegetation. There was also testimony to show that the sulphur compounds resulting from the industrial pollution killed pine trees, caused screens to rust through rapidly, and made flower raising difficult or impossible. There was some testimony to show that some of the sulphur came from locomotives or from river barges, but there was testimony that the power plant was the source of most of the contamination. Defendant's witness, a farmer who was 'hit' less frequently by the sulphurous fumes, estimated his crop damage at 5 percent. There was also evidence of damage to apple trees, sumac, and wild grape, in addition to the alfalfa damage.

Each of the plaintiff farmers testified that his land had diminished in value as the result of the continuing crop loss.

Defendant offered testimony of realtors to the effect that there had been no diminution of market value. One of these witnesses was the assessor of the city of Alma. Two of the three farms were on the city's tax roll.

The jury found that the alfalfa crop on the three farms sustained damage. In concluded, however, that the damage was not substantial. The jury found a diminution of the market value of the Andrew Noll farm but no loss in the market value of the farms of Andrew Jost or Norbert Noll.

The trial judge changed the jury's answer in regard to 'substantial' damage from 'no' to 'yes.' Judgment was entered upon the verdict as amended. Defendant has appealed from the whole of the judgment, and plaintiffs have filed for a review of the judgment which sustained the jury's finding in regard to loss of market value.

Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellant.

Fugina, Kostner, Ward, Kostner & Galstad, Arcadia, for respondents.

HEFFERNAN, Justice.

One of defendant's principal objections to the judgment is that plaintiffs' counsel was permitted to proceed until almost the close of his case before electing to rely on a theory of nuisance rather than negligence. Defendant before trial moved that the pleadings be made more definite and certain, apparently on the theory that the complaint purported to allege a cause of action both in negligence and in nuisance, and that plaintiffs must elect to rely on one cause of action or the order. The trial judge declined to order such election. Defendant contends that thereafter plaintiffs offered 'voluminous' testimony in an attempt to show the defendant's negligence in permitting the emission of sulphur fumes into the atmosphere. Our review of the 900 page record gives no support to the defendant's contention. In the entire transcript only a very few questions could be construed as bearing upon negligence. Contrary to defendant's claim, Attorney Kostner almost immediately dispelled any question in regard to the legal theory on which he was relying. After a defense objection to questions posed to the first witness, Attorney Kostner stated:

'If the Court please, our purpose in asking the question is to show that at the present time there is no control of the diffusion of sulfur dioxide gases from the Alma plant into the atmosphere. Whether or not it's possible, or whether or not there is no method of doing it, is not material because if the sulfur dioxide gases are diffused in the atmosphere and that causes damage to the property the question of whether or not it can, by proper scientific methods, be controlled is not material. The question is did it.'

It seems eminently clear that, from the very outset, the case was tried on the theory of nuisance and not on the ground that the defendant had failed to exercise due care.

Defendant apparently contends that the failure to denominate the cause of action as either nuisance or negligence or to plead allegations that could be construed as giving rise to both theories results in a fatal error. We do not agree--a cause of action is not constituted by labelling the operative facts with the name of a legal theory. The operative facts themselves, if they show the invasion of a protected right, constitute the cause of action. What they are called is immaterial. If the facts reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action--and there is no violation of the rules of pleading if the facts lead to the defendant's liability on more than one legal theory.

Negligence and nuisance, of course, are not always mutually exclusive legal concepts. Prosser points out:

'Another fertile source of confusion is the fact that nuisance is a field of tort liability, rather than a type of tortious conduct. It has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion. The attempt frequently made to distingish between nuisance and negligence, for example, is based upon an entirely mistaken emphasis upon what the defendant has done rather than the result which has followed, and forgets completely the well established fact that negligence is merely one type of conduct which may give rise to a nuisance.' Prosser, Law of Torts (hornbook series, 3d ed.), Nuisance, p. 594, sec. 88.

In the instant cause there was no reason for confusion. Plaintiffs' attorney from the outset made it clear that liability was predicated on the fact that sulphur dioxide gases were emitted into the atmosphere, despite complaints over a period of several years. There was no attempt to hinge plaintiffs' case on the theory that the defendant was not exercising due care. Under the plaintiffs' theory, which we deem to be a correct one, it is irrelevant that defendant was conforming to industry standards of due care if its conduct created a nuisance. We see no error in plaintiffs' pleading of the case, nor can we conclude that the trial conduct of plaintiffs in any way misled defendant or prejudiced its defense by requiring it to prepare for trial on a theory subsequently abandoned.

The jury found that Dairyland Power Cooperative produced its power in such a manner as to constitute a continuing nuisance to the plaintiffs. The following question was, however, answered 'no' by the jury, 'Did such nuisance cause substantial damage to their alfalfa crops and and lands?' Nevertheless, the jury found the damage to the Jost alfalfa crops amounted to $250 for each of the two years, the Andrew Noll damage to $145 for each year, and the Norbert Noll damage to $145 for each year. In addition, Andrew Noll's farm was found to have sustained a $500 diminution in market value.

Appellant claims that the trial judge erred in changing the answer to the substantial damage question from 'no' to 'yes.' It should be noted that this question posed more than one point for the jury's determination; one, did the nuisance cause the damage, and, two, was the damage substantial. The cause element of the question, however, is not argued; and all that defendant contends is that the damage, though caused by the nuisance, was not substantial and that, therefore, the court erred in changing the jury's answer. The rule is clear. A trial court may not change the jury's answer to a question unless it appears that the answer is not supported by any 'credible evidence.' Leatherman v. Garza (1968), 39 Wis.2d 378, 386, 159 N.W.2d 18; Auster v. Zaspel (1955), 270 Wis. 368, 71 N.W.2d 417; Paul v. Hodd (1955), 271 Wis. 278, 73 N.W.2d 412.

The damage to the alfalfa crop was undisputed. Even Danzinger, the neighboring farmer who testified, ostensibly for the defendant, estimated the crop damage at 5 percent. Moreover, the jury found the damage to the alfalfa crop alone to be not less than $200 for the least damaged of the plaintiffs. The court defined substantial damage as:

'* * * a sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right. Substantial damages are damages which are considerable in amount and intended as a real compensation for a real injury.'

The jury was properly instructed. The sums found for crop damage, though meager, are supported by the evidence. Having found such sums to be justly owing, it appears that by no rationalization can it be concluded that the sums properly payable did not constitute 'substantial damage.' In the oft-quoted case, Pennoyer v. Allen (1883), 56 Wis. 502, 14 N.W. 609, the court points out that only a 'substantial injury' is compensible or protected against by law. Substantial injury is defined as 'tangible' injury, or as a 'discomfort perceptible to the senses of ordinary people.' The Restatement, 4 Torts, p. 246, sec. 827, follows the same rationale:

'* * * where the invasion involves physical damage to trangible property, the gravity of the harm is ordinarily regarded as great even though the extent of the harm is relatively small. But where the invasion involves only personal discomfort and annoyance, the gravity of the harm...