Kelley v. National Lead Co.

• Decision Date: 20 April 1948
• Citation: 210 S.W.2d 728,240 Mo.App. 47
• Parties: Harry Kelley and Florence L. Kelley, His Wife, Respondents, v. National Lead Company, a corporation, Appellant
• Court: Missouri Court of Appeals

210 S.W.2d 728

240 Mo.App. 47

Harry Kelley and Florence L. Kelley, His Wife, Respondents, v. National Lead Company, a corporation, Appellant

Court of Appeals of Missouri, St. Louis District

April 20, 1948

Appeal from Circuit Court of the City of St. Louis; Hon. James E McLaughlin, Judge.

Reversed and remanded.

Hugh D. McNew, John S. Marsalek, and Moser, Marsalek Carpenter, Cleary and Carter, for appellant.

(1) The Court erred in failing to direct a verdict in favor of defendant, in acordance with defendant's motion at the close of plaintiffs' case and at the close of all the evidence. (a) The plaintiffs' suit is based upon alleged negligence on defendant's part. The burden rested upon the plaintiffs to sustain said allegation by substantial evidence, but they failed to do so. Bollinger v. Mungle (Mo. App.), 175 S.W.2d 912; Pearson v. Kansas City, 331 Mo. 885, 895, 55 S.W.2d 485, 489. (b) The fact that fumes escaped from defendant's plant was not alone sufficient to show negligence on defendant's part. Rede v. St. Louis County Gas Co. (Mo. App.), 254 S.W. 415; Hendricks v. Weaver (Mo.), 183 S.W.2d 74; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777; Catron v. Nichols, 81 Mo. 80. (c) The doctrine of Rylands v. Fletcher is not the law of Missouri. In the absence of proof of negligence, the owner is not liable for the escape of substances lawfully kept on his premises. McCord Rubber Co. v. St. Joseph Water Co., 181 Mo 678, 692-695, 81 S.W. 189; Greene v. Spinning (Mo. App.), 48 S.W.2d 51; Murphy v. Gillum, 73 Mo.App. 487. (d) Plaintiffs attempted to prove negligence on defendant's part in only one particular, that is, that defendant failed to provide a Cottrell Precipitator. Plaintiffs did not show that the principle was applicable to defendant's installation, or that a device of this kind could have been designed and installed at defendant's plant sooner than it was. (e) The record shows without dispute that plaintiffs suffered only minor inconvenience as a result of fumes from defendant's plant prior to the time when defendant commenced the manufacture of oleum necessary for the manufacture of ammunition. The defendant, by force of a statute enacted by Congress, was compelled to convert its plant to the manufacture of oleum. Under such circumstances, defendant cannot be held liable on account of fumes produced thereby, in the absence of evidence that it was negligent in carrying out the Government's orders. 54 U.S. Stat., Part 1, pp. 885, 892; 50 U.S.C. A., Appendix, Sec. 309, pp. 34-5; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924; Kenton v. Massman Const. Co. (Mo.), 164 S.W.2d 349; Underwood v. Hines, 222 S.W. 1037. (2) The Court erred in giving plaintiffs' instruction No. 1. (a) Said instruction submitted no specific acts of negligence on defendant's part, but erroneously submitted negligence generally. (b) It is deceptive and misleading, and assumes negligence on defendant's part. Holloway Cotton & Grain Co. v. Mo. Pacific R. R. Co. (Mo. App.), 77 S.W.2d 189; Priebe v. Crandall, 187 S.W. 605. (c) It is contrary to the law in declaring that defendant was negligent as a matter of law if fumes, gases, mists and particles emitted from defendant's plant caused plaintiffs annoyance, inconvenience and discomfort, without requiring a finding that the said consequences were material, substantial and unreasonable in character and extent. Kirchgraber v. Lloyd, 59 Mo.App. 59, 62-3; Street v. Marshall, 316 Mo. 698, 705, 291 S.W. 494. (3) The Court erred in giving plaintiffs' instruction No. 4 and in refusing defendant's instruction D. (a) The alleged damage to or depreciation in the value of the plaintiffs' property, submitted in plaintiffs' said instruction, was not a proper item of damages under the pleadings or the evidence. Shelley v. Ozark Pipe Line Corp., 327 Mo. 238, 242, 244, 37 S.W.2d 518; Foncannon v. City of Kirksville, 88 Mo.App. 279, 284; Ivie v. McDougal, 66 Mo.App. 437. (b) Plaintiffs' evidence was to the effect that the fumes impaired paint and screens, requiring more frequent renewal than usual, and that the leaves and blossoms fell from some of their plants. According to their own evidence, all the plants were still growing at the time of the trial. Under such circumstances, the allowance of damages on the theory of depreciation in value was improper. Adams v. Chicago, B. & Q. R. Co., 139 Mo.App. 204, 207, 122 S.W. 1136; Pinney v. Berry, 61 Mo. 359, 367; DeSalme v. Union E. L. & P. Co., 232 Mo.App. 245, 252, 102 S.W.2d 779. (4) The Court erred in refusing defendant's instruction A and in giving plaintiff's instruction No. 5. (a) Defendant's instruction A was limited in application to fumes emitted as the result of manufacture of oleum, during the war, pursuant to requirements of the United States. It presented a theory of defense which defendant was entitled to have the jury consider. Plaintiff's instruction No. 5 erroneously withdrew said theory. Authorities, Point (1), (e), supra. (b) Defendant was entitled to instructions fully and clearly presenting every theory of defense supported by the law and the evidence. Wilson v. Thompson, 345 Mo. 319, 324, 133 S.W.2d 331; Kimbrough v. Chervitz, 353 Mo. 1154, 1162, 186 S.W.2d 461; Parker v. St. L. S. F. R. Co. (Mo.), 41 S.W.2d 386, 388. (5) The Court erred in admitting, over defendant's objections, the evidence of Arthur C. Hoehn to show an alleged depreciation in the value of the plaintiff's real estate. Authorities, Point (3), supra.

Gragg & Aubuchon and Wm. R. Schneider, for respondents.

(1) That the Cottrell Principle was applicable to defendant's installation was fully proved by defendant's own witnesses. The record shows injury to the health and damage to the property and a deterrent to the normal use and enjoyment of the people's property in the affected neighborhood, which included plaintiffs and their property; that for eight years defendant installed the people and the health departments of the City and County before they decided to "try" the only known method of precipitating material that comes out of smoke stacks of lead, zinc and sulphuric acid plants. During all that time defendant knew plaintiffs and the people in their neighborhood were suffering the consequences mentioned above, and it was not until ten years later that the precipitator was finally installed, though not always used, but when used no picture of fumes coming out of the stacks would be obtained. Whether this conduct on the part of defendant was negligence was clearly a question for the jury. The cases cited by appellant under its Point I (e) do not absolve it from negligently injuring another or maintaining a nuisance merely because it was doing war work. The authorities are squarely against appellant's contention as to the effect of 50 U.S.C. A., Appendix, Section 309. Godard v. Babson- Dow Mfg. Co., 313 Mass. 280, 47 N.E. 303, s. c. 65 N .E. (2) 555; Gilbert v. Thierry (Mass.), 66 N. E. (2) 712. Two Missouri decisions sustain plaintiffs' petition, main instruction and theory of negligence. Stephens v. K. C. Gas Co., Mo., 191 S.W. (2) 601; Brauer v. St. Louis Co. Gas Co., Mo. A., 238 S.W. 519. Other authorities refuting appellant's contention are: Procz v. American Steel & Wire Co., Pa., 178 A. 689, 37 N. C. C. A. 190; United Verde Extension Mining Co. v. Ralston, 37 Ariz. 554, 296 P. 262; Shearman & Redfield on Negligence, Vol. 4, Sec. 775, pp. 1773 to 1775; Kankakee Water Co. v. Reeves, 45 Ill. A. 285; Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N. E. (2) 724 (1944) l. c. 727, 729; Frost v. Berkeley Phosphate Co., 42 S.C. 402, 20 S.E. 280; Restatement of Law, Vol. 4, Torts 220, 221, 230; Ryan v. City of Emmetsburg, Ia., 4 N.W. (2) 435 (1942). According to the Missouri decisions, the doctrine of res ipsa loquitur applied. McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2) 557; Carroll v. May Department Stores Co., Mo. A., 180 S.W. (2) 793; Maxie v. Gulf, M .& O. R. Co., Mo., 202 S.W.2d 904; Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932, pp. 939, 940; Faubian v. K. C. Public Service Co., Mo. A. 22 S.W. (2) 877, 901. But the case was also one for the jury on all of the evidence, and particularly on defendant's evidence, if plaintiffs' res ipsa loquitur contention were disregarded. (2) Plaintiffs' first instruction follows precisely the petition and is fully supported by the evidence. The authorities cited by appellant do not sustain the contention that there is error in the instruction. (3) It was not error to authorize the jury by Instruction No. 4 to allow plaintiffs reasonable compensation for damage to or depreciation of the value of their property or both of said items. In three of the cases cited by appellant, Adam v. Chicago, Burlington & Quincy Ry. Co., 139 Mo. A. 204, 122 S.W. (2) 1136; Pinney v. Berry, 61 Mo. 359; DeSalme v. Union Electric Co., 232 Mo. A. 245, 102 S.W. 779, the court recognizes the established principle that in abatable nuisance cases depreciation in rental value is a proper measure of damage suffered by the owner. (4) There was no error in refusing defendant's Instruction A or in giving plaintiffs' instruction No. 5. "A party has no right to have submitted a theory which is contrary to the law applicable to the case." 64 C. J. 599. (5) There was no error in admitting the evidence of the witness Hoehn to show depreciation in value of plaintiffs' real estate. Authorities cited under Point 3, supra.

OPINION

Bennick, C.

This is an action to recover compensation for personal injuries and property damage allegedly sustained by plaintiffs, Harry Kelley and Florence L. Kelley, his wife, as a consequence of the negligence of defendant, National Lead Company, in causing and permitting gases, fumes, and chemical particles to be emitted from...