Masonite Corporation v. Burnham

• Decision Date: 27 February 1933
• Docket Number: 30384
• Court: Mississippi Supreme Court
• Parties: MASONITE CORPORATION v. BURNHAM et al

146 So. 292

164 Miss. 840

MASONITE CORPORATION v. BURNHAM et al

No. 30384

Supreme Court of Mississippi

February 27, 1933

Division B

1 EVIDENCE.

Supreme Court cannot take judicial notice that certain officer is foreign corporation's statutory agent for service of process.

2 VENUE.

Action for damages from pollution of creek, being transitory, may be brought in either of two judicial districts, through which creek flows.

3 VENUE.

Cause of action for pollution of creek by emptying refuse therein in one of two judicial districts, through which it flowed accrued in other district, wherein injuries to plaintiffs occurred, so as to authorize suit in latter district (Laws 1906, chapter 169, section 13; Code 1930, section 495).

4. WATERS AND WATERCOURSES.

Nonnavigable stream belongs to riparian owners.

5. VENDOR AND PURCHASER.

Refusal of instruction that plaintiffs could recover damages only for depreciation in value of their land by pollution of stream after they purchased land held erroneous.

6. VENDOR AND PURCHASER.

Grantor's right of action for depreciation in value of land by pollution of stream did not pass to grantees, whether they knew of depreciation or not.

7. VENDOR AND PURCHASER.

Purchaser of land after trespass cannot recover therefor.

8. WATERS AND WATERCOURSES.

Purchasers of land, value of which had depreciated because of pollution of stream, could recover for additional depreciation by pollution to greater extent after purchase.

9. WATERS AND WATERCOURSES.

Each of several parties, discharging into stream refuse which intermingles and causes actionable nuisance, is liable only for his proportion of damages, in absence of common design or concerted action.

10. WATERS AND WATERCOURSES.

Manufacturer acting independently of city in polluting creek by effluent from its factory held liable only for damages resulting therefrom, though city's sewerage was also deposited in creek.

11. WATERS AND WATERCOURSES.

Owners of land near creek, polluted by effluent from factory, could recover damages from owner thereof because of resulting increase in number of mosquitoes bred in waters of creek.

12. WATERS AND WATERCOURSES.

Instruction that jury could not award plaintiffs, who were not not riparian owners, any damages against factory owner for causing impure water in creek, sediment on bottom of banks, death of fish, unfitness of waters for bathing, drinking, etc., held properly refused.

13. WATERS AND WATERCOURSES.

Nonriparian owners could not recover damages from factory owner for causing impure water in creek, death of fish, unfitness of waters for bathing, drinking, etc., or presence of mosquitoes therein, except as to increase in number thereof.

14. WATERS AND WATERCOURSES.

Pollution of stream by riparian owner or another is not nuisance as to nonriparian owner, unless his rights are invaded thereby.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Action by R. L. Burnham and others against the Masonite Corporation. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Deavours & Hilbun, of Laurel, J. L. Taylor, of Gulfport, and Welch & Cooper, of Laurel, for appellant.

The relationship for the purpose of jurisdiction or venue between the First and Second districts of Jones county is the same as exists between Jones county and Forrest county. Each is in respect to civil actions a separate county.

By the new statute of 1928, it was the intention, and it has the effect, when a foreign private corporation has complied with it, to place the said foreign private corporation in regard to venue in transitory actions in exactly the same attitude as a domestic corporation, and that its effect is to domesticate the said foreign private corporation for the purposes of suit and process--although for that purpose only. That such a construction is fair and just is obvious, and that it squares with every constitutional principle and requirement is likewise obvious, and being obvious needs no further elaboration.

Sandford v. Dixie Construction Company, 128 So. 887, 157 Miss. 626.

The action at bar is a transitory action.

Archbald v. Mississippi R. Co., 66 Miss. 424, 6 So. 238; Jefferson Davis County v. Riley, 129 So. 324, 158 Miss. 473.

Under a statute permitting suit in the county where "the injury occurred," a newspaper could not be sued in any county where the newspaper was circulated or to which it had been sent through the mails but that the proper venue in an action of libel was the county where the paper was printed.

Age-Herald Publishing Co. v. Huddleston, 217 Ala. 40, 92 So. 193.

A cause of action is that which produces or effects the result of which complaint is made.

Noonan v. Pardee, 50 A. 255, 200 Pa. 474; Hibernia National. Bank v. Lacombe, 84 N.Y. 367, 38 Am. Rep. 518; Roberts v. Hickory Company, 58 W.Va. --, 52 S.E. 182.

The suit should be brought in the county of the defendant since there the cause of action arose.

Horne v. City of Buffalo, 49 Hem. 76, 1 N.Y.S. 801.

The purchaser of land after a trespass cannot recover for the trespass.

Knapp v. Alexander Lumber Company, 145 Wis. 528, 130 N.W. 504; Milton v. Puffer, 207 Mass. 416, 93 N.E. 1010.

It was error to refuse instructions stating that appellant is liable only for its part of the pollution if others acting independently contributed thereto.

Tennessee Coal and Iron Company v. Hamilton, 14 So. 167, 100 Ala. 252; Wulford v. Red Oil Co., 151 Ill., App. 433; Pulaski Coal Co. v. Sand Bar Co., 110 Va. 444, 66 S.E. 73; Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631; Chipman v. Palmer, 77 N.Y. 51; Farley v. Crystal Coke Co., 85 W.Va. 595, 102 S.E. 265.

It was error to refuse the following instruction:

"The court instructs the jury that you cannot under your oaths award plaintiffs any damages by reason of the existence of mosquitoes which are alleged to have been bred and grown in the waters of Tallahala Creek."

The refusing of instruction which excluded damages accruing to riparian owners, was erroneous.

The giving of the following instruction was error.

"The court instructs the jury for the plaintiffs, that the fouling of a stream is a nuisance per se, and if you believe from the evidence in this case that the effluent from the plant of the defendant fouled said stream the defendant is guilty of creating or causing a nuisance therein."

The fouling of a stream without other facts is not a nuisance except as to those whose rights have been invaded, that is the riparian owner or owners.

All persons concerned in the commission of a nuisance are liable for the damage caused thereby; and where a nuisance is created by the joint act of several persons an action for the entire damage may be brought against any one of the joint tort-feasors, or against all. Where damage is the result of the act of several persons acting independently, and not in concert, they are not jointly liable; but each is liable only for his proportion of the damages, and the fact that it is difficult to measure accurately the damage which was caused by the wrongful act of each contributor to the aggregate result does not affect the rule, nor make anyone liable for the acts of the others, nor relieve defendants from the nearest approach to accuracy under the circumstances.

20 Corpus Juris.

Where different parties discharge sewage and filth into a stream, which intermingle and cause an actionable nuisance, they are not jointly liable for damages when there is no common design or concert of action, but each is liable only for his proportion of the damages.

City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631, 10 L.R.A. 806.

The exception to the rule liability of joint tort-feasors or limitations is that there is no joint liability or liability for entire damages when the tort-feasors act independently, without concert, collusion, or common design, and the injury to the plaintiff is consequential only, or remotely resulting, as contradistinguished from direct and immediate.

Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 So. 265; Pulaski Coal Co. v. Gibboney Co., 110 Va. 444, 66 S.E. 73, 24 L.R.A. (N.S.) 1185; Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93; Miller v. Highland Ditch Co., 87 Cal. 420, 25 P. 550; Bowman v. Humphrey, 124 Ia. 744, 100 N.W. 854; Loughran v. Des Moines, 72 Ia. 382, 34 N.W. 172; Blaisdale v. Stephens, 14 Nev. 17; Chipman v. Palmer, 77 N.Y. 51, 33 A. R. 566; Little, etc., Coal Co. v. Richards, 57 P. 142, 98 A. D. 209; Norton v. Colusa, etc., Co., 167 F. 202; Symmes v. Prairie Company, 66 Fla. 27, 63 So. 1; Standard Phosphate Company v. Lunn, 66 Fla. 220, 63 So. 429; Jones v. Tennessee Coal Company, 202 Ala. 381, 80 So. 463; Watson v. Colusa Company, 31 Mont. 513, 79 P. 14; Willard v. Red Bank Oil Company, 151 Ill.App. 433; Polk v. Illinois Central Railroad Company, 175 Ky. 762, 195 S.W. 129; United Copper Company v. Jordan, 14 F. 299; Watson v. Pyramid Oil Company, 198 Ky. 135, 248 S.W. 227; King v. Ruth, 136 Miss. 277, 101 So. 500.

Currie & Currie, of Hattiesburg, Collins & Collins, of Laurel, and F. C. Hathorn, of Poplarville, for appellees.

Civil actions of which the circuit courts have original jurisdiction, if the defendant is a domestic corporation, shall be commenced in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue.

Section 495, Code 1930.

This statute applies to foreign corporations as well as domestic corporations.

Sandford v. Dixie Construction Co., 128 So. 887.

The cause of action of appellees against appellant occurs and accrues to them when and only when their home and farm is invaded...