McCracken v. Swift & Co

• Decision Date: 28 July 1924
• Docket Number: 25148
• Citation: 265 S.W. 91
• Parties: McCRACKEN v. SWIFT & CO
• Court: Missouri Supreme Court

265 S.W. 91

McCRACKEN v. SWIFT & CO

No. 25148

Supreme Court of Missouri, Second Division

July 28, 1924

Motion for Rehearing Overruled October 10, 1924.

Barbour & McDavid and Edward A. Barbour, Jr., all of Springfield for appellant.

O. J Page and O. E. Gorman, both of Springfield, for respondent.

OPINION

HIGBEE, C.

This is an action for damages caused by a temporary nuisance. On appeal from a judgment for the plaintiff, the Springfield Court of Appeals affirmed the judgment and certified the cause to this court, because its opinion is in conflict with decisions of the Kansas City Court of Appeals on the question of the measure of damages. The opinion is reported in 212 Mo.App. 558, and 250 S.W. 953. The facts are thus stated in the opinion by Cox, P. J.:

'Defendant has established and maintains a poultry, egg, and butter house in the city of Springfield in which large numbers of all kinds of poultry are kept and prepared for shipment and large numbers of poultry are slaughtered, making necessary the disposition of large quantities of offal, blood feathers, and filth, and in which large numbers of eggs are inspected and many unfit for use are handled and disposed of, which adds to the filth which must be disposed of at defendant's place of business. Large quantities of milk and butter are also handled.

'Plaintiff is the owner of several dwelling houses near defendant's plant which he holds for rental purposes, and one dwelling house in which he resides with his family. Some rooms in the latter house were rented, but it was kept by plaintiff mainly as his dwelling. This suit is based on the allegation that unwholesome and foul odors were generated by defendant, and that these permeated the atmosphere in the vicinity of plaintiff's property house, and that the crying of fowls and handling of large numbers of milk cans created loud and unusual noises that disturbed the inmates of plaintiff's houses, and that the accumulation of filth by defendant bred flies in large quantities, and that these flies swarmed around and got into plaintiff's houses, and that the filth, odors, loud and unusual noises, and flies greatly depreciated the rental value of the houses owned and held by plaintiff for rent and caused great suffering and discomfort to him in the use and enjoyment of his home.

'The evidence on part of plaintiff tended to support his contention as to the facts, while defendant's evidence was to the contrary. The chief question involved in this appeal relates to the measure of damages. It is conceded that as to the rental property the measure of damages is the decrease in the rental value, or the loss in rents, up to the time of filing the suit, and that measure of damages was applied by the trial court to the rental property. The controversy arises as to the measure of damages for the injury suffered by plaintiff in the use and occupancy of his home. There was no claim that plaintiff or his family were made sick by reason of the nuisance, and appellant contends that the same measure of damages should be applied there as applies to the houses rented, to wit, the decrease in rental value alone. Respondent contends, and the trial court so held, that as to the home plaintiff should be compensated for the injury to, and impairment of the ordinary use and enjoyment of his home during the period for which damages were claimed and did not limit the amount to the decrease in rental value. The position of respondent and the trial court upon this question is stated in instruction No. 3 given for plaintiff, which is as follows:

'The court instructs the jury that the plaintiff had the right to the peaceful and uninterrupted occupancy and enjoyment of his home, and, if you find and believe from the evidence that foul odors or loud and unusual noises caused as stated in other instructions arose from, or flies in large numbers were attracted to and came from, defendant's plant and caused plaintiff real and substantial annoyance and discomfort in the enjoyment and occupancy of his home, at No. 621 North Campbell street, then in arriving at your verdict you will allow him as damages on account of such odors or unusual noises or flies, if any, as you find from the evidence will reasonably compensate him for the injury and impairment in the use and occupancy of his home, if any, caused thereby during the period of five years just prior to August 28, 1920, not to exceed the sum of $ 5,000.'

1. We approve and adopt the learned opinion of Cox, P. J. Supplementing the opinion, we may add we do not understand that the learned court intended to adopt the decision, in Ellis v. K. C., etc., R. R., that, where the wife of the occupant of a dwelling house was made sick by the stench arising from the decomposing carcass of a horse killed by the defendant's train and left lying near the residence, she could not, in such case, recover damages for her sickness and injuries. That decision was rendered before the adoption of our Married Woman's Act.

In United States Smelting Co. v. Sisam, 112 C. C. A. 45, 191 F. 301, 37 L. R. A. (N. S.) 982, Sanborn, C. J., said:

'The plaintiff's second cause of action in this case is not for the personal injury to his wife and to the members of his family, inflicted by the fumes of the smelter. It is for the direct injury those fumes inflicted upon him by rendering his home inconvenient and uncomfortable, and his wife and the other members of his family who were living with him ill and wretched. He had the right to live and to support his wife and family in his home upon his land. He had the right to breathe, and to have his wife and family breathe, air in and about his home; the pure air that was necessary to their lives, their health, and their comfort. Is it not an injury to him that this air was so polluted by noxious fumes and gases that it made his wife suffocating and sick, and his home, which he had established for the comfort of himself, his wife, and family, an abode of misery? If a stranger establishes and maintains a nuisance in the absence of the owner, which makes the members of his family ill and drives them from his home, may he recover no damages because he was not physically hurt?'

After citing numerous cases, the opinion concludes:

'And the conclusion is that the owner of a residence which is rendered inconvenient, uncomfortable, and unhealthy as a home, by the nuisance of sulphurous fumes and their products thrown upon it by another, may prove and recover in an action therefor the damages he suffers himself from the discomfort and sickness thereby inflicted upon his wife and the other members of his family who lived with him in his residence, although he may not, and his wife alone may, maintain the cause of action for the direct personal injury to her.'

See, also, Millett v. Minn. Crushing Stone Co., 145 Minn. 475, 177 N.W. 641, 179 N.W. 682, and 29 Cyc. 1187.

In 4 Sutherland on Damages (4th Ed.) 3890, the rule applicable to the facts in this case is thus stated:

'A plaintiff who occupies a home is not limited to the recovery of the diminished rental value of it, but may be compensated for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment and occupancy of his home, as well as for any actual injury to his health or property caused by the nuisance.'

This accords with the rule announced in Smiths v. McConathy, 11 Mo. 517, 523. In Smith v. Sedalia, 182 Mo. 1, 12, 81 S.W. 165, 167, Valliant, J., said:

'If the defendant city has collected its sewage and discharged it in a volume into the creek to...