Nitram Chemicals, Inc. v. Parker
| Decision Date | 07 June 1967 |
| Docket Number | 7140--7143,7152,Nos. 7148--7151,7154,7145,7147,7153,7144,7146,7155,s. 7148--7151 |
| Citation | 200 So.2d 220 |
| Parties | NITRAM CHEMICALS, INC., a corporation, Appellant, v. H. E. PARKER and Lorraine Parker, Clarrey Stanford and Ruby Stanford, Julian Torre and Virginia Torre, Joseph B. Garrison, Jr., and Sandra P. Garrison, Isaac F. Stanley and Vada Stanley, Calvin C. Peterson and Velma C. Peterson, Paul A. Messina and Nancy Messina, Robert E. Sanchez and Evelyn Sanchez, Appellees. |
| Court | Florida District Court of Appeals |
William Reece Smith, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
John R. Parkhill, James M. McEwen, of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for appellees.
Nitram Chemicals, Inc., defendant below, takes a consolidated appeal from final judgments entered upon eight separate verdicts. The verdicts found Nitram guilty of maintaining a temporary nuisance continuing at the time of trial and awarded the plaintiffs, appellees here, the following respective amounts:
H. E. Parker and Lorraine
Parker $10,500
Clarrey Stanford and Ruby
Stanford 4,500
Julian Torre and Virginia Torre 7,500
Joseph B. Garrison, Jr. and
Sandra P. Garrison 5,000
Isaac F. Stanley and Vada Stanley 4,000
Calvin C. Peterson and Velma
C. Peterson 3,000
Paul A. Messina and Nancy
Messina 8,000
Robert E. Sanchez and Evelyn
Appellant has stated three points in its brief. Point I and Point III both relate to temporary nuisances and we shall discuss these two points together.
Point II relates to appellant's claim that the lower court failed to substantially and correctly charge the jury on the law applicable to a nuisance.
Points I and III are as follows:
I. The jury verdict of a temporary nuisance continuing at the time of trial is contrary to the manifest weight of the evidence.
III. The Trial Court erred in denying defendant's motions for directed verdict, for judgment in accordance with motion for directed verdict, and for new trial because there was no evidence from which the jury could properly assess damages for a temporary nuisance and because the jury was not charged as to the proper measure of damages for a temporary nuisance.
Point II is stated to be:
The Trial Court erred in failing to substantially and correctly charge the jury on the law applicable to the issue of whether defendant's plant constituted a nuisance.
The appellant, in its reply to the brief of the appellees, has broken its statement of points down into four points, as follows:
Point I: The jury verdict of a temporary nuisance continuing at the time of trial is contrary to the manifest weight of the evidence.
Point II: The trial court erred in failing to substantially and correctly charge the jury on the law applicable to the issue of whether defendant's plant constituted a nuisance.
Point III: The trial court erred in denying defendant's motions for directed verdict, for judgment in accordance with motion for directed verdict, and for new trial because there was no evidence from which the jury could properly assess damages for temporary nuisance.
Point IV: The trial court erred in denying defendant's motions for directed verdict, for judgment in accordance with motion for directed verdict, and for new trial because the jury was not charged as to the proper measure of damages for a temporary nuisance.
It will be observed that Points I, III and IV relate to temporary nuisances, similar to Points I and III of the original brief of appellant, while Point II of the reply brief relates to charges applicable to a nuisance, the same as Point II of appellant's original brief. In discussing the points in this opinion, we shall use the points set out in appellant's original brief.
The facts upon which this case arose are set out below.
The appellant, Nitram, produces ammonium nitrate for use in fertilizer. The plant, built in December of 1963, is located outside the Tampa city limits close to appellees' property. From the time the plant was built, appellees complained of a variety of irritating noises, dust and fumes which arose out of the operation of the plant. Appellees' evidence charged that the noises, dust and fumes restricted the appellees in the use of their property and impaired their physical and mental well being.
Complaints to Nitram and to local health officials would ease the problems for a short time, after which the fumes and noises would begin again and to the same extent as prior to the complaints.
The complaints did not stop the cause of appellees' troubles and the case went to trial. Testimony by appellees revealed the existence of sirens, clanging, humming noises, as well as irritating dust and odors. These conditions caused the appellees to have to keep the windows closed, even in the summer, to stay inside, to sleep in a room not facing the plant, and caused some of them or their families to go for treatment of physical ailments.
Appellant's evidence was to the effect that new equipment had been installed to reduce these problems and that Nitram had done all it could at the time of trial to abate the conditions. Appellees testified, however, that the noises and the odors continued immediately before, as well as during, the trial.
Verdicts and judgments favored the plaintiff-appellees and Nitram appealed.
The first point on appeal, whether the verdict is against the manifest weight of the evidence, will compel us to fill in the above sketchy outline of the facts.
Appellant contends, in essence, that the jury could not find the existence of a Temporary nuisance continuing to the time of trial. Appellant argues that noise, dust and ammonia fumes, which emanated from its plant during the early months of operation, had been entirely eliminated, except for unforeseeable instances, or arose out of a reasonable use of its property. Appellant goes on to assert that the jury could have found either that a nuisance existed but was abated at the time of trial or that the nuisance was permanent. The manifest weight of the evidence, it contends, was against a finding of temporary nuisance continuing to the time of trial. It is apparent from the above that our problem is not whether a nuisance existed, but whether a temporary nuisance existed to the date of trial and which the jury found to exist, and also the proper elements of damages.
Appellees presented the following evidence to demonstrate that the nuisance was Continuing at the time of trial:
Mrs. Garrison, appellee, testified that on Saturday, before trial, she saw yellow smoke, which smelled like ammonia, in her backyard. It came from the Nitram smoke stack. She stated that the ammonia often caused a burning sensation on her skin, bothered her children and often restricted adults to the confines of the house. She said she hears a grinding or a humming noise when the plant is operating.
Mr. Stanley testified to the noise and fumes and stated: 'I have seen the fumes so bad that we couldn't even step outside of the house, that it would come down like a light rain and get on you, and you have a kind of a burning sensation on your skin.' He stated that the improvement in these conditions Now as compared to when the plant first began operating was small. He testified that he no longer hears the siren noise, but that the problems have caused differences between him and his wife. He stated he had to buy air conditioning to eliminate the odor inside the house but he still hears the noise. Mrs. Stanley substantially confirmed her husband's testimony and added that the ammonia odor makes her ill.
Mrs. Peterson testified that the noise and the odors were particularly bad during December of 1965 and January of 1966, and that before the plant was built she had no problem with these conditions. She commented that she and her child are allergic to ammonia, that she keeps her windows closed constantly, that the children cannot sleep in the bedroom which faces the plant, that the noise makes her nervous, and that she has had to be treated by a doctor.
Ruby Stanford testified that the most recent time she experienced the odor was the Saturday before trial. She stated she still hears the trains banging and noises which she described as roaring and grinding. She stated that Charlotte, her daughter, cannot use her bedroom, which faces the operational plant, and that she has been under the care of a physician. Dr. Benet testified concerning the adverse effect the ammonia fumes had on her daughter.
Appellees' witness, a Mrs. Chavez, who lives beyond the Messinas, stated that the most recent incident occurred the day before the trial began. She testified as to other incidents occurring on December 24 and 25, 1965. She related that the fumes and the smoke which came from the plant caused her nostrils to burn and her eyes to tear.
Witness Lennard complained of a clanging and banging sound coming from the plant at night and as recent as a week before trial.
Witness Mrs. Ball, who lived near Mrs. Chavez, testified that the ammonia odor has been present ever since Nitram began operating and that she heard the plant noises about a week and a half before the trial.
Witness Mrs. Futch, who lives near the Petersons, complained of the bad odor on the weekend before the trial. She stated that she cannot stay in her yard when the odor exists--she must go into her house or leave the area.
A witness, Mr. Calhoun, who also lives near the Petersons, heard, two nights before the trial, the sound of steam escaping as well as a loud roaring sound.
Appellee Julian Torre testified that on the night of January 25, 1966, a lot of smoke and a funny smell came from the plant. He explained that these conditions are driving his wife into a constant nervous condition and that he stays mad about the plant's operations. Mrs. Torre substantially confirmed her husband's remarks. Dr. Fernandez, by...
To continue reading
Request your trial
-
Sterling v. Velsicol Chemical Corp.
...Trap Rock Corp., 293 N.Y. 509, 58 N.E.2d 517 (1944); Alonso v. Hills, 95 Cal.App.2d 778, 214 P.2d 50 (1950); Nitram Chemicals Inc. v. Parker, 200 So.2d 220 (Fla.Ct.App.1967); Riblet v. Spokane-Portland Cement Co., 45 Wash.2d 346, 274 P.2d 574 (1954); Vestal v. Gulf Oil Corp., 149 Tex. 487, ......
-
Rust v. Guinn
...Miller v. Carnation Co., (1977) 39 Colo.App. 1, 564 P.2d 127; Nair v. Thow, (1968) 156 Conn. 445, 242 A.2d 757; Nitram Chemicals, Inc. v. Parker, (1967) Fla.App., 200 So.2d 220; Pollard v. Land West, Inc., (1974) 96 Idaho 274, 526 P.2d 1110; Earl v. Clark, (1974) Iowa, 219 N.W.2d 487; Holmb......
-
Antun Investments Corp. v. Ergas
...to check out in large numbers resulted in loss of business, hotel may have nuisance action for damages suffered); Nitram Chem., Inc. v. Parker, 200 So.2d 220, 225 (Fla. 2d DCA) (quoting Prosser, Torts § 91 (3d ed. 1964) ("[T]he principal elements of damages are the value attached to the use......
-
Sarasota-Manatee Airport Authority v. Alderman
...without prayer for injunction, a jury would determine damages. Ferreira v. D'Asaro, Fla.App.1963, 152 So.2d 736; Nitram Chemicals, Inc. v. Parker, Fla.App.1967, 200 So.2d 220. Petitioner's argument in essence is that in neither City of Jacksonville v. Schumann, Fla.App.1964, 167 So.2d 95, s......