Masonite Corporation v. Dennis

• Decision Date: 08 June 1936
• Docket Number: 31440
• Citation: 168 So. 613,175 Miss. 855
• Court: Mississippi Supreme Court
• Parties: MASONITE CORPORATION v. DENNIS

168 So. 613

175 Miss. 855

MASONITE CORPORATION v. DENNIS

No. 31440

Supreme Court of Mississippi

June 8, 1936

Division A

1 EVIDENCE.

Plaintiff has burden to show liability of defendant by preponderance of evidence.

2 TRIAL.

Everything must be considered as proved which evidence establishes directly or by reasonable inference against party asking peremptory instruction.

3 EVIDENCE.

Presumption may not be based on another presumption.

4. APPEAL AND ERROR.

Verdicts which are based on mere conjecture or on inference upon an inference cannot be allowed to stand except where required by reasonable necessity in interests of justice.

5. EVIDENCE.

Supreme Court would take judicial notice of fact that rivers and creeks of state had much foreign matter deposited in them consisting of logs, trees, limbs, leaves, and in cities all solid matter which floats on streets, such as paper and other sewage.

6. WATERS AND WATERCOURSES.

Evidence held insufficient to justify judgment awarding owner of land riparian to river recovery of damages for depreciation in value of his land against building material manufacturing company discharging wood fiber into creek which emptied into river forty or fifty miles from plaintiff's land, on ground that discharge from company's plant was cause of damage.

HON. W. J. PACK, Judge.

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

Action by George Dennis, Sr., against the Masonite Corporation. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

Reversed and dismissed.

Harman Young, of New Augusta, C. C. Smith, of Richton, and Welch & Cooper, of Laurel, for appellant.

Where the plaintiff sues for damages to land and the evidence shows without dispute that he purchased the land on June 25, 1932, suit was filed in August, 1933, case tried in April 1934, and the plaintiff admits that the pollution, if any, began in 1927, and that since its purchase there has been no change in the land and no damage the defendant is entitled to a directed verdict.

Masonite Corporation v. Burnham, 146 So. 292, 164 Miss. 840.

At the most for the plaintiff and the least for the defendant, under these facts, nominal damages only could be recovered by plaintiff, and the court erred in refusing to so instruct as requested by the defendant, appellant here.

Perry v. Creamery Co., 125 Iowa 415, 101 N.W. 150.

The defendant in such a suit, where its effluent goes into a creek forty to fifty miles above the confluence of the creek with Leaf River and where the land whose damage is claimed is several miles below such confluence, is entitled to directed verdict where the evidence fails to show that the land is damaged and that unusual happenings occurring at intervals of two to three years are not caused by the defendant.

This is particularly true where the main or chief complaint is that a substance described as "oily," "scummy," "black," "stained-looking" was in the water on two or more days in July, 1933, and fish were killed. No one, however, saw this substance near appellee's land. And no dead fish were found between the mouth of Tallahala creek and Wingate Bridge, a distance of several miles and Wingate Bridge being down stream from the mouth of the creek. And especially is this true when the same type of water was observed near Hattiesburg twenty miles or more north of the mouth of Tallahala creek.

Where circumstantial evidence is relied on to establish liability, the evidence must exclude every other probable cause of the injury other than the one stated.

G. M. & N. R. R. Co. v Sumrall, 107 So. 281, 142 Miss. 56.

Where two or more independent tort-feasors may have been guilty and only one is sued it is the duty of plaintiff to prove the extent of the damage done by the defendant. Otherwise, if certain that the defendant did some, plaintiff is entitled to recover only nominal damages. If it is not certain, then the defendant is entitled to a peremptory instruction.

King v. Ruth, 101 So. 500, 136 Miss. 377.

Under the facts disclosed by the record and repeated in the assignment of error it was error to refuse an instruction to the jury to the jury to the effect that this appellant was not responsible for the fish killed in the early days of July, 1933.

Where no one resides on land and no substantial damage is claimed by reason of an order, the court was in error in refusing to instruct the jury that only nominal damages could be recovered for any order caused by defendant.

Watson v. New Milford, 72 Conn. 561; Howard v. Bibb County, 127 Ga. 291, 56 S.E. 418.

The court erred in permitting witnesses to detail the effects of appellant's effluent on other land and the stream at a point forty to fifty miles above and within twelve miles of the plant of appellant, especially where no similarity of conditions are shown.

Where it appears without dispute that there are many sources of pollution, it is error for the court by instruction to permit the jury to speculate as to who caused the damage where there is no attempt by proof to show the extent of the contribution of each to the pollution.

King v. Ruth, 101 So. 500, 136 Miss. 377.

Hathorn & Williams, of Poplarville, Currie & Currie, of Hattiesburg, and Jeff Collins, of Laurel, for appellee.

According to the overwhelming weight of authority in the United States the appellant is liable for the whole damage done by the pollution of the streams by the emptying of its effluent into the same, and no person and no court and no jury actually can or should be called upon to segregate the polluting matter which it emptied into said streams from the polluting matters emptied therein by and from other sources, and to segregate or separate from the whole damage done that part only supposed to come from and be caused by that part of the polluting matters emptied into them by the appellant, but under the rule announced by this court in the case of Masonite Corporation v. Burnham, 146 So. 292, the court and jury were required to undertake to do this, and attempting to proceed under the rule announced by this court in that case, the appellee requested and the court granted the following instruction: "The court instructs the jury for the plaintiff, that although you might believe from the evidence in the case that the waters of said river were polluted by waste matter and deleterious foreign elements and substances emptied into it by and from sources other than the manufacturing plant of the defendant, and that the defendant is not alone responsible or liable for the pollution, if any, of said stream and the damages, if any, thereby proximately occasioned or caused the plaintiff, still it would be your duty, under the law, to find and return a verdict for the plaintiff for such damages, if any, as you may believe from the evidence in the case were solely and proximately occasioned or caused by the effluent, if any, from the plant of the defendant emptied into such stream," which correctly submitted the case to the jury under the rule of law announced by this court in the Burnham case, supra, and now we find tim appellant complaining against that instruction, because it contends that there is absolutely no sufficient proof in the case to show that the effluent from its plant polluted the stream or in any manner damaged the appellee, and, we respectfully submit that if the court should agree with the appellant we would then have the anomalous phenomenon of an effluent or polluting element in flowing water, which: (1) changed the color black; (2) erected the most offensive and nauseating odors; (3) destroyed all fish life; without inflicting any damage whatever upon adjacent or abutting land owners.

It was the exclusive province of the jury, in its deliberations upon the evidence in the case, to consider the whole of the appellee's testimony in the light of all of the facts and circumstances in the case, to determine the weight and credibility thereof, to reconcile apparent conflicts therein, and on the whole to determine what the truth was, and there is ample testimony here from the appellee to support the verdict of the jury and the judgment in this case.

Natural Gas Corp. v. Bazor, 137 So. 788.

The proof shows that wood fibre and sediment which is present in and forms at least one-third of the content of the effluent from the plant of the appellant, is emptied into these streams only by the appellant and come from no other source.

38 A. L. R. 1393; Threat v. Brewer Mining Co., 26 S.E. 970.

A lower riparian owner has a right to have the water come to him in an unpolluted condition.

Argued orally by Ellis B. Cooper, for appellant, and by C. V. Hathorn, for appellee.

OPINION

McGowen, J.

The appellee, George Dennis, Sr., brought an action at law against the Masonite Corporation, by which he sought to recover damages for the depreciation in the value of his land, alleging same to have been brought about by the fact that the appellant emptied the waste from its plant into Tallahala creek, which in turn emptied into Leaf river, and as a result of said effluent in the streams nauseous odors were produced, and a sediment was deposited on his land which injured its productivity. Appellee also alleged that the fish in the two streams were killed, and that the waters of Leaf river were so polluted as to be unfit for human or animal use. Upon issue being joined and the trial of the case before a jury, there was a verdict for one thousand dollars, and a judgment of the lower court was entered accordingly; from which appellant prosecutes an appeal.

Sixteen assignments of error are presented to this court on behalf of appellant, each seriously and earnestly argued; but we shall consider only those which...