Kirkland v. Hardwicke Chemical Co., 19837

• Decision Date: 06 June 1974
• Docket Number: No. 19837,19837
• Citation: 205 S.E.2d 831,262 S.C. 520
• Court: South Carolina Supreme Court
• Parties: McRae KIRKLAND and George Kaney, Respondents, v. HARDWICKE CHEMICAL COMPANY, Appellant.

Page 831

205 S.E.2d 831

262 S.C. 520

McRae KIRKLAND and George Kaney, Respondents, v. HARDWICKE CHEMICAL COMPANY, Appellant.

No. 19837.

Supreme Court of South Carolina.

June 6, 1974.

Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellant.

Lourie, Draine & Curlee, Columbia, for respondents.

MOSS, Chief Justice:

McRae Kirkland and George Kaney, the respondents herein, brought this action against Hardwicke Chemical Company, the appellant herein, to recover damages for the deprivation of use and enjoyment of their property arising from the alleged negligent pollution of Spears Creek in Kershaw County. It appears that Spears Creek bisects a tract of land owned by Kirkland and in which Kaney has a leasehold interest. Hardwicke operates a chemical plant on Spears Creek and at this location the creek is three to four feet wide and one and one-half to two feet deep. The property of the respondents is some six miles downstream from this plant, at which point the creek is sixty to seventy feet wide, with a maximum depth of twenty feet. There are four or more tributaries which drain into Spears Creek between the property of the appellant and that of the respondents.

This case came on for trial before the Honorable John Grimball, presiding judge, at the 1973 May Term of the Court of Common Pleas for Kershaw County, resulting in a verdict for the respondents for actual damages.

At appropriate stages of the trial motions for nonsuit and directed verdict were made and denied. Following the trial the appellant moved for judgment Non obstante veredicto, or in the alternative for a new trial. These motions were also denied.

The appellant asserts error on the part of the trial judge in refusing its motions for nonsuit, directed verdict and judgment Non obstante veredicto, because the respondents failed to prove that the appellant's operation was a proximate cause of their damages. In consideration of this question we are required to view the evidence in the light most favorable to the respondents. However, when only one reasonable inference can be drawn from all of the evidence, then the question becomes one of law for the court and there is no issue for submission to the jury, and it is the duty of the trial judge to direct a verdict.

There is testimony that in May and October of 1970, fish kills occurred in Spears Creek within the boundaries of the property of the respondents. The South Carolina Pollution Control Authority was contacted and investigators were sent to the scene. No analysis was made of the water or the fish on either occasion to determine the cause of the kills. The only evidence introduced by the respondents on the issue of causal relationship between the appellant's operation and the fish kills was the testimony of respondent Kaney. His testimony was to the effect that at the times in question he found numerous dead fish in the stream and there was a foul odor emanating from the water which was covered by an oily film, but he made no effort to testify as to what caused the fish kills.

The respondents placed on the witness stand George A. Rhame, Assistant Director of the South Carolina Pollution Control Authority, who testified that there was at fish kill in Spears Creek in May, 1970, but he had no knowledge of the cause of the death of the fish or of any problem in controlling waste at the plant of the appellant. He did testify that he sent two representatives of the Authority to investigate the reported fish kill. These men could have taken specimen fish and water samples at this location and had a chemical and bacteriological analysis made which would have determined, with a reasonable degree of certainty, the cause of...