Klassen v. Central Kan. Co-op. Creamery Ass'n

• Decision Date: 26 January 1946
• Docket Number: 36430.
• Citation: 165 P.2d 601,160 Kan. 697
• Parties: KLASSEN v. CENTRAL KANSAS COOPERATIVE CREAMERY ASS'N.
• Court: Kansas Supreme Court

165 P.2d 601

160 Kan. 697

KLASSEN v. CENTRAL KANSAS COOPERATIVE CREAMERY ASS'N.

No. 36430.

Supreme Court of Kansas

January 26, 1946

Appeal from District Court, Marion County; James P. Coleman, Judge.

Appeal from District Court, Marion County; James P. Coleman, Judge.

Action by Jacob E. Klassen against the Central Kansas Cooperative Creamery Association of Hillsboro to recover damages caused by pollution of a stream and the underground water supply of a farm, of which plaintiff was a tenant, by discharge of waste products from defendant's creamery. Judgment for plaintiff, and defendant appeals.

Syllabus by the Court.

1. In an action for damages against a creamery company for injury to livestock caused by pollution of the underground water supply of a farmer, defendant argued that the cause of action pleaded was res judicata on account of a judgment in a former action between the same plaintiff and the city where the creamery plant was located-- held, the cause of action stated was for injury to different livestock and during a later period of time--hence one was not res judicata to the other.

2. In an action such as that described in the foregoing paragraph of this syllabus, defendant argues that the plaintiff entered into a lease for the farm in question with the knowledge of danger of damage from pollution of the water supply, hence assumed the risk and could not recover-- held, that under the allegations of the petition plaintiff at the time of signing his lease had reasonable grounds for believing that the conditions which had caused the pollution in the past had been corrected.

3. In an action such as that described in paragraph one of this syllabus, one cause of action in the petition alleged that waste products escaping from defendant's creamery created an obnoxious odor, stench and pig smell; that plaintiff and his family were subjected to this foul odor during the warm months for two years and had to close up the house on sultry nights to keep out the offensive smell-- held, that this petition stated a cause of action for damages for maintenance of a nuisance and plaintiff may recover damages therefor.

4. In an action such as that described in the first paragraph of this syllabus, it is not necessary for the plaintiff to prove that the creamery company was negligent in permitting its waste products to escape.

5. In an action such as described in the first paragraph of this syllabus, the record is examined and it is held there was substantial evidence to establish that (1) the underground water supply of the plaintiff was polluted; and (2) plaintiff's hogs and chickens died from drinking this water.

6. In an action such as that described in the first paragraph of this syllabus, where the petition stated three causes of action, it was not reversible error in the absence of a request from the defendant for the trial court to fail to submit to the jury a separate verdict on each cause of action.

John P Flinn, of Newton (Ezra Branine, Alden E. Branine, and Fred Ice, all of Newton, and John E. Wheeler, of Marion, on the brief), for appellant.

Earl C Moore, of Wichita (Lester Wilkinson, of Wichita, on the brief), for appellee.

SMITH Justice.

This was an action to recover damages, both actual and punitive, alleged to have been sustained when a stream and the underground water supply of a farm of which plaintiff was tenant were polluted by the discharge of waste products from a creamery operated by defendant. Judgment was for plaintiff. Defendant appeals.

The amended petition (referred to hereinafter as the petition) purported to state three causes of action. After the formal allegations the first cause of action alleged that the plaintiff was a tenant living on and farming a described half section of land just south and east of the city of Hillsboro; that this city operated a sewage disposal plant just north of plaintiff's farm; that this city disposal plant drained into a small creek which flowed through a part of plaintiff's farm about 300 feet from the house. The petition then alleged that plaintiff had rented this farm on a year-to-year basis, but that on March 1, 1942, he was indoubt about whether to rent the place again on account of stream pollution that had occurred in 1941, but that the city of Hillsboro enlarged its sewage plant and started its operation about February 2, 1942, and the state board of health advised plaintiff that final inspection indicated it would operate so that no nuisance would be created, whereupon plaintiff entered into a five-year lease for the land in question for a period from March 1, 1942 to March 1, 1947. The petition then alleged that defendant operated a creamery plant in the city of Hillsboro and emptied its waste products into the sewer system of the city; that in the spring of 1941 the defendant without treating its waste products dumped about 15,000 gallons of creamery waste a day into the sewer system, which overloaded the sewage plant, causing increased bio-chemical oxygen demand content of the effluent of the plant far beyond the average domestic sewage; that the average domestic sewage runs around twenty parts per million while this effluent was about one hundred parts per million. The petition then alleged that beginning about June 1, 1941, the pollution from the sewage plant reached plaintiff's farm, which was about a mile from the plant, at which time the water in the creek became murky and developed a pigpen odor and a black sludge appeared on the water and the banks of the stream; that during the summer of 1941 the defendant continued to dump its waste into the sewer polluting the stream which ran through plaintiff's farm even though it had advised the state board of health it would cease overloading the plant; that as a matter of fact defendant enlarged its plant so that its washings rose to an average of 34,000 gallons a day while its milk receipts increased from an average of 3,000 pounds in May, 1941 to 18,000 pounds in June, 1942, while its cheese production rose from an average of 2,000 pounds in May, 1941 to 15,000 pounds in June, 1942. The petition next alleged that as a result of this pollution of the stream the underground water supply on the farm became polluted, the exact date of which plaintiff did not know; that the underground water supply became so polluted in the summer of 1942 that plaintiff's hogs and chickens began to die from drinking well water. The petition then alleged various amounts of damage to hogs and chickens, amounting to $481.25, all of which was the result of the pollution of plaintiff's water supply; that defendant had overloaded the sewage plant and caused scum and sludge which in 1941 caused the itemized loss of chickens in the amount of $422.50, loss of egg production of $360, required the purchase of poultry medicine in the amount of $25, retarded the growth of lambs, causing a loss of $135, caused a reduction in the increase of older sheep resulting in the loss of $36, required extra feeding in the amount of $92, caused a decrease in milk production in the amount of $128, all of which amounted in the aggregate to $1,198.50. The petition then alleged that to stop his hogs and chickens from dying plaintiff was compelled to haul water for 36 weeks, at a cost of $5 per week, or a total of $180. In this cause of action plaintiff prayed for damages in the amount of $1,759.75.

In the second cause of action plaintiff made the allegations of the first cause of action a part thereof and then alleged that the excessive pollution caused the development of an obnoxious odor, stench and pig smell; that plaintiff and his family were subjected to this foul odor from about June 1, 1941 to the date of the filing of the petition; that it was worse in summer than in winter. Plaintiff prayed for $2,000 damages in this cause of action.

In the third cause of action plaintiff after reference to the allegations of the first and second causes of action alleged that the defendant through its agent, with full knowledge that the wastes from its plant were causing the pollution of the stream on plaintiff's land, negligently refused to take any action to stop the pollution, but continued to empty creamery wastes into the sewer in violation of a city ordinance and contrary to the instruction and advice of the state board of health. In this cause of action plaintiff asked for punitive damages in the amount of $5,000.

To this petition defendant filed a general denial. The answer then alleged that in 1930 the defendant constructed and began operating the creamery plant in question; that by agreement with the city it had continuously discharged certain waste products from this plant into the sewer system of the city but that it never emptied any of these waste products into the sewer system without treating them, and the answer denied that defendant had ever emptied excess amounts into the sewer system or that plaintiff had ever suffered any loss on account of negligent conduct of defendant, and that if plaintiff had suffered any loss the action was barred by the statute of limitations. The answer then alleged that the causes of action stated in plaintiff's petition were the identical causes of action alleged in another action in which plaintiff in this case was plaintiff and the city of Hillsboro was defendant and in which plaintiff recovered damages in the amount of $750, which judgment had been satisfied and paid. The answer then alleged that on account of the foregoing judgment the causes of action alleged in plaintiff's petition were barred by the doctrine of res judicata. The answer then alleged that at the time plaintiff entered into the lease for the farm in question plaintiff knew that defendant was discharging certain of...