Nance v. Merchants' Fertilizer & Phosphate Co.

• Decision Date: 29 April 1931
• Docket Number: 484.
• Citation: 158 S.E. 486,200 N.C. 702
• Parties: NANCE v. MERCHANTS' FERTILIZER & PHOSPHATE CO.
• Court: North Carolina Supreme Court

158 S.E. 486

200 N.C. 702

NANCE v. MERCHANTS' FERTILIZER & PHOSPHATE CO.

No. 484.

Supreme Court of North Carolina

April 29, 1931

Appeal from Superior Court, Mecklenburg County; Harwood, Special Judge.

Action by Claude Nance against the Merchants' Fertilizer & Phosphate Company. Judgment for plaintiff, and defendant appeals.

No error.

Negligence of owner of fertilizer plant in permitting mineral refuse and chemicals to pollute creek, which overflowed in plaintiff's pasture causing death to hogs drinking water held for jury.

This is an action for actionable negligence brought by plaintiff, a negro, against the defendant to recover damages. The allegations of the complaint are to the effect: That plaintiff was the owner of 36 fine Hampshire and Poland China Tamworth hogs. That he had these hogs in a pasture on the west bank of Stewart's creek, near the city of Charlotte N.C. That the defendant owns and operates a fertilizer plant near said creek, about three-fourths of a mile above plaintiff's pasture. That the natural slope and drain from defendant's plant was into said creek. That defendant carelessly and negligently caused and allowed the chemical and mineral refuse from the plant to be dumped piled, and accumulate on the border and brink and down the sloping banks of and in the immediate drains to the creek, and in allowing fluids to drain from its plant into the running stream; and that the defendant company, in this manner and by its willful, negligent, wanton, and reckless acts and omissions in causing, allowing, and permitting the alleged condition, negligently, recklessly, and unlawfully poisoned and polluted the creek which overflowed in the plaintiff's pasture and caused the said damages to the plaintiff. That in February, 1928, heavy or protracted rains prevailed, which caused the creek to overflow and deposit and leave water in the holes and low places in the plaintiff's hog pasture in which some of the plaintiff's hogs wallowed and drank water and thereafter became sick and died; that during the month of November, 1928, a like condition prevailed as that in February, 1928, followed by the dying of other hogs of the plaintiff, bringing the total number of hogs which became sick and died, after drinking the water deposited and left in plaintiff's pasture, to 36. That the plaintiff is informed and believes, and so alleges, that the waste and refuse matter and liquid, dumped and allowed by the defendant company to accumulate at and below its plant and to drain from its plant, contains foreign and poisonous substances which is destructive to animal life and that the natural drains and seepage from the land above, the liquid wastes from the defendant's acid plant, together with the rains in or about February and November, 1928, washed and carried down the said stream from the defendant's plant, into the plaintiff's pasture, certain acids and poisons, and that which said acid and poisons killed the plaintiff's 36 hogs, which were worth about $1,200.

The material allegations of the complaint were denied by the defendant.

The issues submitted to the jury and their answers thereto were as follows:

"1. Were the hogs of the plaintiff killed by the negligence of the defendant as alleged in the complaint? Answer: Yes.

"2. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $1,000.00."

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. These and the necessary facts will be considered in the opinion.

Fred W. Bynum, of Rockingham, and C. H. Gover, of Charlotte, for appellant.

Uhlman S. Alexander and S.E. W. Kenney, all of Charlotte, for appellee.

CLARKSON J.

The defendant at the close of plaintiff's evidence, and at the close of all the evidence, made motions in the court below for judgment as in case of nonsuit. C. S. § 567. The court below overruled these motions, and in this we see no error. It is the well-settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support his cause of action whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.

The evidence of plaintiff on the trial below fully sustained the allegations of the complaint. The evidence was to the effect: (1) That 36 of plaintiff's hogs became sick and died in his pasture about 50 feet from Stewart's creek, the first group of 20 in February, 1928, and the second group of 16 in October of the same year. That on both occasions water from the creek overflowed and got in the holes in the pasture, and soon thereafter the hogs drank the water and got thirsty and down, would not eat, and became sick and died. Prior to drinking the water they were in good health and had no disease. The younger hogs died first. Some of the hogs were cut open. "Their entrails were eaten just like leaves eaten by worms." "The entrails looked like they were scalded and full of holes." They did not have cholera. "The hogs that did not drink that water did not die." (2) In searching for the cause, it was discovered that in Stewart's creek, below defendant's plant there was no animal life in the stream; above defendant's plant in the stream were fish and tadpoles. Before defendant's plant was located, there "some pretty big perch were caught in the Creek, but there are none now, there is no animal life in the Creek below the plant now, there are some small fish in the Creek above the plant." At defendant's plant, on the watershed of the creek, the ground sloped to the creek, and there was a slag pile about 150 feet from the creek. The ground slopes gradually from the slag pile to the creek. "Water drains from slag pile through a ditch to the Creek." Stewart's creek is about 7 feet wide in dry weather, 12 inches deep, and about 300 feet from defendant's plant. Some of the slag and chemicals put there by defendant from the pile were obtained and some water out of Stewart's creek opposite the pasture, and also some mud out of the water holes in the hog pasture. The stuff emptied on the slag pile was yellow sulphur and nitre mixed together; it came from the acid chamber of defendant's plant. (3) Some of the slag and chemical from defendant's pile, etc., taken were analyzed by Dr. H. P. Arbuckle and his associate Dr. O. J. Theis, Jr.; Dr. Arbuckle being Professor of Chemistry at Davidson College and Dr. Theis' associate. Both found by the court or admitted to be expert chemists. Liles v. Hannah Pickett Mills, 197 N.C. 772, 150 S.E. 363. Where there is any evidence to sustain such finding, it is conclusive on appeal. State v. Combs, 200 N.C. --, 158 S.E. 252. Dr. Arbuckle's testimony, corroborated by Dr. Theis, was to the effect that:

"The principal contents is sodium acid sulphate, which is a substance left in the manufacture of sulphuric acid by treating sodium nitrate with sulphuric acid; if you use sufficient sodium nitrate to equalize the acid it will make sodium sulphate. This material in the box is about 40% sulphuric acid. Sulphuric acid is one of our most corrosive acids and attacks tissue, and wood; in its diluted form it will rank as a poisonous substance and would seriously affect tissues if constantly subjected to its action. Sulphuric acid taken internally in large quantities would be poisonous, bring about serious results, even diluted will seriously affect the tissues of the body, characterized by producing extreme thirst and I suppose there would be perforation of the intestines and other organs of the body. (Defendant moved to strike the answer out. It was allowed but jury were not cautioned to disregard this evidence and defendant excepted.) I have had considerable experience with live-stock; have never given any sulphuric acid to hogs and stock and could not give an opinion. Do know it would be injurious to tissues, mucous linings.

"Q. Would it cause death if taken in sufficient quantities? A. In my opinion it would, sulphuric acid is ranked as one of our poisons. I analyzed the contents of the two cans shown me; when opened they showed considerable pressure of gas and they had holes which indicated action of acid upon the iron in the cans; the water in one of the cans shows large quantities of sodium acid sulphate and is the same as the mud in the cigar box."

There was ample evidence to be submitted to the jury, and the court below was correct in overruling defendant's motions for judgment as in case of nonsuit. The evidence was circumstantial; the probative force was for them--not for us.

In Rhyne v. Mfg. Co., 182 N.C. 489, 109 S.E....