Masonite Corporation v. Hill

• Decision Date: 16 April 1934
• Docket Number: 31175
• Citation: 154 So. 295,170 Miss. 158
• Court: Mississippi Supreme Court
• Parties: MASONITE CORPORATION v. HILL

154 So. 295

170 Miss. 158

MASONITE CORPORATION v. HILL

No. 31175

Supreme Court of Mississippi

April 16, 1934

Division B

1 EVIDENCE.

Court knows from accepted chemical authorities that methyl alcohol in small quantities in dilution is not harmful by external application.

2 EVIDENCE.

Inference may be based upon another inference, but where ultimate inference has become only a more or less strong possibility proof is insufficient to support judgment.

3. EVIDENCE.

Inference may be based upon another inference only so far as reasonable necessities of case in interest of justice require.

4. EVIDENCE.

Where one having burden of proof has power to introduce more satisfactory evidence than that introduced, presumption is that additional evidence, if introduced, would have been detrimental to him.

5. WATERS AND WATERCOURSES.

In action for injuries, sustained while swimming, and alleged to have been caused by irritant poisons flowing into stream from defendant's plant, plaintiff had burden of proof.

6. EVIDENCE.

Plaintiff suing for injuries sustained while swimming could not recover upon evidence composed of inference upon inference to show water contained irritant poisons from effluent from defendant's plant where plaintiff did not introduce proof of chemical analysis of water.

7. EVIDENCE.

Inference upon inference cannot prevail when fact sought to be thus established is capable of more satisfactory proof by direct evidence within reasonable power of party holding burden to produce.

HON. W. J. PACK, Judge.

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

Action by B. A. Hill against the Masonite Corporation. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.

Reversed and dismissed.

H. D. Young, of New Augusta, and W. S. Welch and Ellis B. Cooper, both of Laurel, for appellant.

Appellee in his declaration charged that the effluent of appellant caused his injury. Under the rules of pleading and proof, it was incumbent upon the plaintiff, appellee here, to prove that appellant's effluent or waste caused the injury of which he complains.

Proof that he was infected while in the water is not, we submit, proof of appellant's liability. Proof that appellant with others contributed to the pollution of the stream is not enough.

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

It is the settled doctrine of this state that those who without concert of action pollute the waters of a stream are not joint tort-feasors and there is no liability as such. Each stands upon his own bottom and is liable only for the damage done by him or his proportion of the damage done, if all contributed to it.

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

The only fact adduced by appellee, or that appears from this record, which would in any way tend to lead one to the bare conclusion that appellant caused the injury is the fact that the fish have died.

The proof wholly fails to show that appellant's contribution to the stream caused appellee's injury.

Dr. Smith admits that he had made no bacteriological examination or chemical analysis of the water. His was observation only.

Freeman v. State, 67 So. 460, 108 Miss. 818.

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

The proof showed that the stream contained--was full of -- poisonous acids and gases, which were emptied into it from the plant of the appellant.

The very circumstances established by the evidence in the case irresistibly establish the fact that the feet and legs of the appellant were poisoned in this stream, by the effluent from the plant of the appellant. No other inference can arise. This is the natural necessary inference. There is no other reasonable explanation. No other reasonable inference or conclusion could be drawn.

Under the statute of this state, section 511, Miss. Code 1930 Annotated, the appellant would be liable for all the damages sustained by the appellee caused by the effluent from its plant, or to the full extent to which the effluent from its plant contributed to the injuries of the appellee.

All questions of negligence and contributory negligence shall be for the jury to determine.

Section 512, Miss. Code of 1930 Annotated.

Where the question is which of several antecedent circumstances is the cause of a given effect, it is logically relevant to show that on other occasions the presence of a particular antecedent has produced similar results, the other antecedents being varied. This is in accordance with the canon of inductive reasoning that "if two or more instances of the phenomenon under investigation have only one circumstance in common, the circumstance in which alone all the instances agree is the cause (or effect) of the phenomenon." Consequently evidence of the persistent recurrence of a given result when one antecedent alone remains constant is received and regarded as highly probative that this antecedent is the cause of the result.

Masonite Corporation v. Burnham, 146 So. 292, 164 Miss. 840; 22 C. J. 764, par. 860.

Close questions of negligence vel non can only be determined safely and righteously by the juries of the country.

Y. & M. V. R. R. Co. v. Williams, 74 So. 835.

Argued orally by Ellis B. Cooper, for appellant, and by Dan T. Currie and F. C. Hathorn, for appellee.

OPINION

Griffith, J.

Appellant is engaged in the manufacture, in Laurel in this state, of a building material known as Masonite boards. In this process second-growth pine is used, which is first chipped into small pieces, and these pieces are subjected to a high pressure of steam, which pressure is suddenly released, causing the pieces to explode into fiber. This fiber is put through a refining process and is mixed with water, so that it can be pumped through the mill into the storage chest. Up to this point no chemicals of any kind are used, but in the storage chest a waterproofing or sizing material called petrolatum is added in quantity equal to about two per cent. of the weight of the fiber. Of this petrolatum or sizing material all, or practically all, is retained in the finished board, but there is nothing in the petrolatum which is poisonous. After the sizing has been added, the material flows over to a machine similar to a paper machine, where the excess water is drained away and the fiber remains in the form of a sheet, and then it is subjected to heat and pressure by the proper devices and thereby converted into boards suitable for building purposes.

The only other chemical used in the plant is caustic soda to clean the pressure plates, and there is a small amount of chromic acid which results as a waste or dripping from the iron plates which are coated with chromium. The amount of these chemicals or either of them which finds its way into the effluent of the plant is relatively negligible, and it is shown that in these quantities there is nothing harmful. There is suspended in the effluent a relatively small portion of the wood fiber, this suspension amounting to about one-half of one per cent. of the aggregate of the effluent, and this effluent, in the total of about one million to one million three hundred thousand gallons of water per day, is discharged into Tallahala creek. There is also in this effluent various of the chemicals or acids which are naturally present in wood and which are to some extent released by the explosion of the pieces of wood into fiber, of which the only actively poisonous element is a small amount of methyl alcohol, later to be mentioned. When this effluent, with its suspension of wood fiber and the other natural elements which result from the explosion of the wood in the plant, reaches the stream into which it is discharged, it enters upon what may be called, to use a familiar term, the process of rotting; it turns the water dark, it gives off a more or less offensive odor, and this decomposition uses up the suspended oxygen in the stream so that all the fish die, not from poisons but from the absence of a sufficient quantity of suspended oxygen in the water. There is a large effluent of city sewerage cast into said stream, not only from the city of Laurel, and from all its dwellings, stores, hospitals, industrial enterprises of various kinds and the like, but also from the town of Ellisville; and there are other sewerage outfalls along the course of the stream, but we do not deem it necessary to detail all these. It is shown by the testimony that, when all these effluents, including the effluent from appellant's plant, reach the stream, chemical changes take place, but what these changes are is not disclosed by any direct evidence.

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