Masonite Corp. v. Steede
| Decision Date | 12 November 1945 |
| Docket Number | 35751. |
| Citation | 198 Miss. 530,23 So.2d 756 |
| Court | Mississippi Supreme Court |
| Parties | MASONITE CORPORATION v. STEEDE. |
Welch & Cooper, of Laurel, Hinkle P Heidelberg, of Pascagoula, and O. F. Moss, of Lucedale, for appellant.
Ford & Ford, of Pascagoula, for appellee.
The appellee's action is for the recovery of damages for the practical destruction of a fishery business, the actual damages claimed therefor being the loss of profits therefrom. The main opinion rendered herein when the judgment of the court below was reversed, which appears in 21 So.2d 463 correctly held that she had failed to prove with a reasonable degree of certainty any loss of profits, and therefore the judgment of the court below should be reversed, but it was incorrect in further holding that because no loss of profits was thus shown the appellant's request for a directed verdict should have been granted. The appellee's failure to prove actual damages for the destruction of her fishery business did not bar her from recovering nominal damages therefor. In order, therefore, to hold that the appellant's request for a directed verdict should have been granted some other reason must appear therefor. Three such reasons are advanced, (1) that the evidence is insufficient to warrant a jury in finding that the effluent placed in the river by the appellant contributed to the killing of the fish; (2) that the evidence discloses that the appellee's fishery business was destroyed by the killing of fish in 1941, for which she had been paid by the appellant, consequently she had no such business to be again destroyed in 1943; and (3) that although the effluent discharged into the river from the appellant's plant may have contributed to the killing of the fish in the river the appellee has no cause of action therefor against the appellant for the reason that she did not own the fish.
The first two of these asserted reasons are without merit for it is clear from the evidence that the jury would be warranted in finding that the destruction of the fish was contributed to by the effluent permitted by the appellant to escape from its plant, and that her fishery business though decreased in volume by the killing of the fish in 1941 was still in existence in 1943 and was still being operated by her.
The facts relative to the existence vel non of a cause of action in the appellee for the killing of the fish appear in our former main opinion and will not be here repeated.
The appellee did not own the fish, but she and all other persons who could obtain access to Pascagoula River had the right to take fish therefrom and dispose of them at pleasure in addition, the appellee had the right to permit or exclude others from obtaining access to the river over her property and to grant permits therefor on her own terms. Both of these are valuable rights for the destruction of which by the pollution of the river she would be entitled to recover damages. 22 Am.Jur., Fish & Fisheries, Section 25, and cases cited in note to Johnston v. Galva, 316 Ill. 598, 147 N.E. 453, 38 A.L.R. 1384, at page 1395.
On the evidence the jury was warranted in finding, as it did, that the effluent from the appellant's manufacturing plant polluted the river and materially contributed to, if it did not solely cause, the death of the fish, which resulted in the practical destruction of the appellee's fishery. One of the elements of the value of the appellee's right to permit others to obtain, or exclude others from obtaining, access to this river in order to fish therein, was to use it to promote a commercial purpose within limitations not here necessary to set forth. In order for persons permitted by her to obtain access to the river to be enabled to fish therein, they must have fishing tackle, bait, boats, and if they remain there for any length of time food and lodging, the furnishing of which is so closely related to the appellee's right to permit persons to obtain access to the river on her own terms as to become virtually a part of it. If the killing of the fish caused persons to discontinue availing themselves of the appellee's fishing facilities, the principal element of the value of this right of the appellee was destroyed; and she is entitled to damages therefor,--actual if she proves such, but nominal if she does not. Consequently, the court below committed no error in refusing the appellant's request for a directed verdict in its favor.
One of the errors complained of by the appellant is the admission of certain evidence introduced by the appellee. One Bond testified on behalf of the appellee as to the effluent cast into the river by the appellant and its effect on the fish therein. In the course of his examination in chief he stated in reply to questions directed thereto: 'They got a bunch of fishermen and took us up there, and they showed us over the plant, and showed us the ponds and spillways, and where the stuff run out of the ponds and into the creek and down the river'. Later on in his examination in chief he stated there were 12 or 15 in this party, that defendant took them up there and the party was in charge of Mr. Grant, that they furnished transportation, entertainment, and bore all expenses. He was then asked this question by counsel for the appellee, plaintiff in the court below:
The examination then proceeded as follows:
.
'By the Court: I will sustain the objection to the last question and answer.'
It will be observed that the witness answered the question as to whether anybody came under the influence of the whiskey, but no request was made of the court to direct the jury to disregard that answer. All of this evidence was irrelevant and immaterial and therefore on proper objection should have been excluded. But was it prejudicial to the appellant, and if so, harmful enough to require a reversal of the judgment? Counsel for the appellant say that it 'carried with it certain suggestions or insinuations which in the minds of a great number of people would be very harmful * * * the purpose and the effect of this testimony is so clearly evident that it requires no argument, it is harmful and its harmful effect is clear'. It can only have harmed the appellant by causing the jury to resent its serving of intoxicating liquor to this party of fishermen but to say that it had this effect would be a mere guess and we must presume that the jury was composed of honest and intelligent men who would not let such evidence have any effect on their verdict. Moreover when it appeared from the answer of the witness that intoxicating liquor was...
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