Masonite Corporation v. Steede

• Decision Date: 26 March 1945
• Docket Number: 35751.
• Citation: 198 Miss. 530,21 So.2d 463
• Court: Mississippi Supreme Court
• Parties: MASONITE CORPORATION v. STEEDE.

21 So.2d 463

198 Miss. 530

MASONITE CORPORATION v. STEEDE.

No. 35751.

Supreme Court of Mississippi

March 26, 1945

Welch & Cooper, of Laurel, Hinkle P Heidelberg, of Pascagoula, and O. F. Moss, of Lucedale, for appellant.

Ford & Ford, of Pascagoula, for appellee.

SMITH, Chief Justice.

The appellee recovered a judgment for the loss of profits she claims she would have made in a business operated by her which she claims was destroyed by the appellant.

The appellant owns, and for a number of years has been operating a manufacturing plant on the banks of Tallahala Creek at Laurel, Mississippi, and discharges daily from this plant into the creek a large amount of water containing wood fibre. Tallahala Creek flows into Leaf River and Leaf River into Pascagoula River. The appellee owns lands on Pascagoula River and there operated in 1941, and several years prior thereto a fishing resort equipped with all necessary fishing facilities, and for a compensation would supply those who came thereto with boats, bait, board and lodging. According to the appellee's declaration and evidence 'a tremendous slug of said fibre' came down Pascagoula River in June 1941 and killed practically all of the fish therein 'leaving only such few as managed to run up into lakes and branches;' because of which 'it would probably have taken three to five years for fish life to be restored in the streams, if there had been no further polution.' After this killing of the fish, fishermen ceased to come to appellee's fishing resort for the reason that 'one could catch so little fish that it was not worth while to try,' because of which, her 'business was substantially destroyed or virtually so.' There was another destruction of fish in this river from the same cause in 1942, and another in July 1943.

The appellee sues for loss of profits from this business. Her declaration covers the whole period between July 1941 and the filing of her declaration in October 1943, but it developed in the evidence that the appellant had paid her for all damages sustained by her in 1941 and 1942 because of the killing of the fish in those years. Consequently, she limited her claim by her requested instructions to loss of profits in 1943. The declaration also claims damages for fish 'killed in boxes' belonging to the appellee, and for depreciation in value of her equipment, but no claim therefor was made at the trial.

This is not an action for immediate, but for consequential, injury to the appellee caused by the killing of the fish in the Pascagoula River, and since she has been compensated for the injury occasioned her by the killing of the fish in 1941 and 1942, the action must be limited to one for the killing of fish in 1943. It sounds in damages and a cause of action appears if, but not unless, it is 'shown with reasonable certainty that damage was suffered (by the appellee) and that such damage resulted from the act or omission complained of (the killing of the fish in 1943.)' 25 C.J.S., Damages, Section 27; 15 Am.Jur., Damages, Section 20; Kress & Company v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167.

The evidence as to appellee's damage is in substance, as follows: She was equipped to accommodate forty-five guests at one time, and her profit from the business prior to 1941 was about $2,500 per annum. In 1943, only a few guests came to the appellee, and they would remain only a few days, from whom she received not more than $15 per month. What her expenses were for operating the business that year does not appear. There is nothing in this evidence that would warrant a jury in finding that but for the 1943 killing of the fish, the appellee would have had more patrons during that year and would have made a greater profit from the business than she in fact did. In other words, damage to the appellee because of the killing of the fish in 1943 does not appear with such reasonable certainty as to warrant a jury in acting thereon. From this, it follows that the court below should have granted the appellant's request for a directed verdict in its favor.

This opinion assumes, but merely for the purpose of the argument, that the damage here sought is recoverable if properly proven.

Reversed and judgment here for the appellant.

ALEXANDER Justice (dissenting).

I agree that the cause ought to be reversed, but am of the opinion that it should be remanded for hearing upon the issue of damages under proper instructions. The jury was warranted in finding that the pollution of the stream was at least substantially contributed to by the fibrous effluent discharged therein by appellant. The right of the plaintiff to maintain her action was sanctioned by Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 752.

To deny plaintiff's rights, it ought not to be sufficient merely to generalize her damages as consequential; the test of liability is a matter of proximate result. In the Burnham case the same effluent caused an increased infestation of mosquitoes. This, in turn, caused annoyance and damage, yet it was not condemned as merely consequential, but distinctly upheld by this Court.

The plaintiff had a right as a riparian owner and as a citizen to the use of the stream unpolluted, and to establish her business upon her right to use the stream as an asset. The defendant had the duty not to injure this right. It was, therefore, an unlawful violation of a private legal right. It is of no consequence that plaintiff did not own the waters nor the fish therein. She is not suing for damage to the fish. Yet she had the legal right to take them. She does not sue for killing the fish, but for killing her business. It could not be denied that, had she captured fish within a live box, recovery for their destruction could be allowed. She did not own the waters, but she had the right to employ them in her business whether it be to turn the wheels of a mill or to float her fishing craft or to utilize them in any way in the conduct of her modest enterprise. Damage to one's person or business by noxious fumes or odors has never been denied upon the ground that plaintiff did not own the atmosphere. Has slander ever been refined into damnum absque injuria by an analysis which disclosed that the spoken words were conveyed by the mysteries of atmospheric wave lengths through a medium which plaintiff did not own?

There is nothing complicated nor novel in the conception that loss of business is an element of damage in nuisance cases. 25 C.J.S., Damages, § 90, p. 633. The phrase should not be broken down into a lot of smaller component links so as to attenuate the chain of causation beyond its capacity to bind cause and effect.

The controlling opinion places emphasis upon the contention that a killing of fish in 1943 is not sufficiently shown. Yet the controlling consideration is not the date of the cause but of its effect. Damage in 1943 was shown. The time when the forces of destruction were set in motion ought to be as irrelevant as the date when any potential menace was created. The gradual burning of a time fuse may prolong the ultimate moment of damage and liability, but it should not be allowed in its delayed progress, to burn away responsibility for its setting.

I must confess an inability to find apposite an illustration whereby A seeks damages from B for his destruction of C's mine property. Here A has no right to demand that C continue his development of the mine so that A may enjoy incidental profits from his housing facilities. In the instant case there are only two parties, the owner of the business and the party destroying it. It is important also to note that here the plaintiff has the right to demand that her adjacent waters continue to flow and that they be not disturbed to her hurt. In the suggested case A could not sue C for a voluntary abandonment of his business for C has the right at any time to stop the flow of its custom or to pollute its progress by inefficiency. Plaintiff launched her business upon the banks...