Peacock v. Wis. Zinc Co.

• Decision Date: 05 June 1922
• Citation: 188 N.W. 641,177 Wis. 510
• Parties: PEACOCK v. WISCONSIN ZINC CO.
• Court: Wisconsin Supreme Court

177 Wis. 510

188 N.W. 641

PEACOCK

v.WISCONSIN ZINC CO.

Supreme Court of Wisconsin.

June 5, 1922.

Appeal from Lafayette County Court; J. B. Simpson, Judge.

Action by Christopher Peacock against the Wisconsin Zinc Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action brought by the plaintiff for alleged injury to his crops, pasture, milch cows, and other cattle during the years 1919 and 1920, by smoke, fumes, and gases from an ore-roasting plant owned and operated by the defendant. The farm rented and occupied by the plaintiff lies to the northwest of the roasting plant, the point nearest the roaster being three-eighths of a mile distant, and that farthest away about a mile and a quarter distant.

The complaint alleged the ownership and interest of the plaintiffs in the premises in question, the corporate character of the defendant, the fact that the roasting plant was operated and maintained by the defendant, and “that during the whole of said agricultural seasons for 1919 and 1920 the defendant corporation emitted and sent forth from its manufacturing plant situated in close proximity to the plaintiff's premises as aforesaid large volumes and quantities of smoke, sulphur dioxide, arsenious oxide, acid fumes, vapors, gases, and other poisonous, destructive, and deleterious substances, destructive of plant and animal life;” that such substances so sent forth were “carried to and deposited upon the aforesaid premises of the plaintiff, and caused great injury to the grass and crops of the plaintiff growing upon the aforesaid land, and further poisoned the cattle of the plaintiff grazing upon said premises and drinking from the running water upon said premises, causing some of said cattle to die, and so injuring others as to render them nearly worthless, and very seriously impairing the milking qualities of the milch cows kept upon the premises--all to the plaintiff's damage in the sum of $3,000.”

The answer admitted the corporate character of the defendant; alleged that the defendant had no information as to the interest of the plaintiff in the premises; admitted that its plant gave forth smoke, fumes and gases, but denied that such smoke, vapors, and fumes in any manner or form affected the grass or crops of plaintiff, or that they poisoned the cattle of plaintiff grazing upon said premises or drinking from the running water upon the premises.

The jury found for the plaintiff, and assessed his damages as follows:

+--------------------------------------+
                ¦Damage to crops in 1919     ¦$1,500 00¦
                +----------------------------+---------¦
                ¦Damage to crops in 1920     ¦1,500 00 ¦
                +----------------------------+---------¦
                ¦Damage loss of milk in 1919 ¦_______  ¦
                +----------------------------+---------¦
                ¦Damage loss of milk in 1920 ¦_______  ¦
                +----------------------------+---------¦
                ¦Damage to live stock in 1919¦_______  ¦
                +----------------------------+---------¦
                ¦Damage to live stock in 1920¦_______  ¦
                +--------------------------------------+
                

Defendant made the usual motions after verdict, which were denied, and plaintiff had judgment upon the verdict for $3,000, from which judgment the defendant appeals.Kopp & Brunckhorst, of Platteville, for appellant.

Fiedler, Fiedler & Jackson, of Mineral Point, for respondent.

ROSENBERRY, J. (after stating the facts as above).

This case was very thoroughly and carefully tried and has been argued here with earnestness and ability. We cannot treat in detail all of the errors assigned, but shall consider only those most important.

A number of errors are assigned relating to the introduction of testimony as to the damage to stock, and by reason of that damage a decreased milk supply obtained during the years 1919 and 1920. While the jury found no damage by reason of loss of milk or damage to live stock, it is urged that they must have considered damages of that character in arriving at the amount awarded as damages to crops. There is sufficient evidence to sustain the finding as to damage to crops. Therefore we find no basis in the evidence to warrant us in holding that the evidence received in respect to damages by reason of loss of milk and injury to live stock was considered by the jury in assessing the amount of damages to the crops. We shall not further consider that aspect of the case.

[1] It is urged that the verdict is perverse. The argument in support of that claim, however, relates almost entirely to the proper measure of damages. While the evidence as to the amount of injury done to the crops by the fumes from the roaster is not entirely satisfactory, we cannot say, taking that view of the evidence which is most favorable to the plaintiff, that there is no credible evidence to support the verdict; therefore it must stand.

It is urged that, while the court adopted the correct rule for the measure of damages for injury to growing crops in his instructions, throughout the trial he admitted evidence upon a different rule expressed thus:

“The measure of damages for injury to growing crops is the difference between the market value of the crops when ripe and their value in the injured condition, less the cost of maturing, caring for, and harvesting that part of the crop which is not matured and harvested.” U. S. Smelting Co. v. Sisam, 191 Fed. 293, 112 C. C. A. 37, 37 L. R. A. (N. S.) 976.

The defendant contends that the true rule for measure of damages for injury to growing crops is the difference in the value of the crops before and after injury in the condition they were in at the time and place of the injury, citing 3 Sutherland on Damages, §§ 1023, 1049; 3 Sedgwick on Damages, 937, and cases there cited.

We have no disposition to enter into a philosophical discussion of the reasons underlying the various rules which have been laid down for ascertaining the amount of damages done to growing crops. A growing crop as such is valuable mainly by reason of its potentialities. A field of oats, for instance, six inches high would have some value for pasturage purposes, but its real value is dependent mainly upon the fact that, under normal conditions, it will at maturity produce a certain yield of grain, and its present value is therefore determined very largely by reference to that fact. If an expert witness is called to testify as to the value of a field of oats six inches high before and after injury, he must necessarily take into consideration the probable yield at maturity of the crop undamaged, compared with its yield in its damaged condition. Whether the witness be required to disclose the basis of his judgment or whether he be permitted to give his opinion in response to a proper question, the result is the same.

We are cited to Folsom v. Apple River Log-Driving Co., 41 Wis. 602. It was there held that the proper measure of damages was not the rental value of the premises, but the value of the crop standing upon the ground before and after injury, and, in estimating the value of the crop standing on the ground, the witnesses were allowed to state the amount of hay which the land would produce, and apparently based their estimate of damages upon that estimate. Where the destruction was complete, the full value of the matured crop was allowed; where the destruction was partial, the diminished value was allowed.

The rule was stated in U. S. Smelting Co. v. Sisam, 191 Fed. 293, 112 C. C. A. 37, 37 L. R. A. (N. S.) 976:

“Where a crop is injured from time to time throughout its growing season until its maturity by sulphurous fumes and their products, but is not destroyed so that it is cultivated throughout the season, harvested, and marketed, the damage to it may be lawfully measured under these rules...