Powell v. Brookfield Pressed Brick & Tile Mfg. Co.

• Decision Date: 01 February 1904
• Citation: 78 S.W. 646,104 Mo.App. 713
• Parties: A. J. POWELL etux., Respondents, v. BROOKFIELD PRESSED BRICK AND TILE MANUFACTURING COMPANY, Appellant
• Court: Kansas Court of Appeals

78 S.W. 646

104 Mo.App. 713

A. J. POWELL etux., Respondents, v. BROOKFIELD PRESSED BRICK AND TILE MANUFACTURING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1904

Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.

Judgment affirmed.

Lander & Lander for appellant.

(1) Defendant corporation was legally authorized and licensed to establish its brick plant, and to manufacture, burn and sell brick; the plant is established on the company's own ground. The trial court overlooked or disregarded the well defined legal distinction between acts done under authority permission or license of the law, and acts done by one not so authorized. Bishop's non-contract law presents the doctrine as follows, section 425: "If a statute or a municipal by-law, valid in law, authorizes a thing to be done, it is not a nuisance, though of a sort which would be such but for the authorization." Supported in note 6, by the following authorities: Miller v. New York, 109 U.S. 385; Sawyer v. Davis, 136 Mass. 239; Railway v. Truman, 11 Mo.App. 45; Lewis v Stein, 16 Ala. 214; Atty.-Gen. v. New York, etc., 9 C. E. Green 49; Danville, etc., Red. v Commonwealth, 23 Smith (Pa.) 29; Cogswell v. Railroad, 4 Cent. 229. (2) The amended petition on which the case was finally tried charges no negligence or carelessness on the part of the defendant company. The evidence fails to show any negligence, carelessness, fault, wrongdoing or want of skill, care or caution on the part of the company in the construction, use and operation of its brick kilns; the trial court so found when the case was taken from the jury. This record presents a clear case of damnum absque injuria and nothing else. (The literal translation, "Damage without injury," is a little contradictory; the better meaning is injury without wrong.) Penn. Coal Co. v. Sanderson, 113 Pa. St. 126; Howland v. Vincent, 10 Met. (Mass.) 371; People v. Canal Board, 2 N.Y.S. 275; Thurston v. Hancock, 12 Mass. 220; Benton v. Holland, 18 John. (N. Y.) 92; Palmer v. Mulligan, Cai. Rep. (N. Y.) 308; Rosce v. Buchanan, 51 N.Y. 477; Menken v. City Atlanta (Ga.), 2 S.E. 559. Missouri cases on the same doctrine as follows: Colier v. Ray, 48 Mo.App. 398; Mining Co. v. Morning Star Co., 50 Mo.App. 535; Miller v. Martin, 16 Mo. 508; Clark's Admr., v. Railroad, 36 Mo. 203; Abbott v. Railway, 83 Mo. 271; Jones v. Railway, 84 Mo. 151; Moss v. Railway, 85 Mo. 81.

A. A. Bailey for respondents.

(1) "A legislative authority to carry on the work of operating a brick kiln is not a defense to an action for a nuisance created in carrying on the work." State ex rel. v. Board of Health, 16 Mo.App. 8, 59 Mo.App. 59; 16 Am. and Eng. Ency. of Law (1 Ed.), 949; Campbell v. Seaman, 20 Am. 567 (63 N.Y. 568). (2) "A corporation may be liable in damages for a nuisance." 4 Am. and Eng. Ency. of Law (1 Ed.), 258; Railroad v. Fifth Baptist Church, 108 U.S. 317. "It is now well-settled law that a corporation is equally responsible as an individual for the wrongs it commits." Alexander v. Relfe, 74 Mo. 495; Soulard v. St. Louis, 36 Mo. 546.

OPINION

SMITH, P. J.

The plaintiffs were the owners of a tract of land abutting against the right of way of the Hannibal & St. Joseph Railroad on the north and on which there was an inclosed cultivated field in which plaintiff had planted and growing a crop of corn. On the south side of the said railway and opposite to the land of plaintiff the defendant--a manufacturing company organized under article 9, chapter 12, Revised Statutes--owned a tract on which at a distance seventy-five feet south of said railroad's right of way it constructed and operated brick kilns for the burning of brick. The petition inter alia alleged:

"Plaintiffs further say that the defendant ever since April, 1902, until the present time, has kept and maintained a large number of fires and furnaces burning in its said brick kilns and drying houses, and that said fires and furnaces have constantly and continuously, both day and night, produced, generated and emitted large quantities of smoke, noisome and noxious vapors and sulphurous fumes, poisonous to vegetation. And plaintiffs say that the defendant has during all said time (carelessly and negligently), and unlawfully permitted said smoke, vapors and fumes to escape from its said fires and furnaces, and has (carelessly, negligently) and unlawfully, permitted said smoke, fumes and vapors to escape close to the surface of the earth, and has (negligently, carelessly) and unlawfully failed and refused to build chimneys or smoke stacks to carry the same up into the air high enough to pass away without injuring plaintiffs' said crop, and has (carelessly, negligently) and unlawfully, during all of said time, fed its said fires and furnaces with soft or bituminous coal as fuel, which coal was highly charged with sulphur, sulphurous compounds and black jack, and which coal produced and generated when burned, smoke and vapors and fumes most poisonous and deadly to vegetation, all of which was well known to defendant, its officers, agents and servants. And that the defendant constructed its said furnaces in and about its said brick kilns and drying houses in such a (careless, reckless and improper) manner that the same did not properly consume the coal fed to them as fuel, but caused and permitted large quantities of said coal to smolder and generate large quantities of poisonous smoke and fumes that would not have been generated provided said furnaces had been properly constructed and had smokestacks connected therewith sufficiently high to cause the said furnaces to draw; and that the defendant by and through itself, its officers, agents and servants, during all of said time, fired, fed and maintained its said fires and furnaces in such a (reckless and careless) manner with the coal aforesaid that the said fires and furnaces were constantly kept clogged and overcharged with the said coal, and that by reason thereof the said fires and furnaces could not and did not draw properly, which caused said fuel to smolder and generate and emit large quantities of such smoke, vapors and fumes which escaped from the mouths of furnaces and was not sufficiently heated and rarified to raise above the surface of the ground. That by reason of the premises aforesaid the said poisoned and noxious smoke and vapors and poisonous and sulphurous fumes so caused, generated and produced by the defendant as aforesaid, did from time to time and for days at a time, during the entire growing season of vegetation of the present year, drift and pass over and enter into and spread and diffuse themselves over and upon, into, through and about plaintiffs' said corn so growing as aforesaid on the said land owned and occupied by plaintiffs as aforesaid, and plaintiffs' said cornfield and the air over, through and about the corn growing in said field was thereby greatly filled and impregnated with said smoke, vapors and fumes, and the said smoke, vapors and fumes so caused, generated, produced and permitted to escape by the defendant as aforesaid, and so passing and drifting into and among plaintiffs' said growing crop of corn as aforesaid, did kill, injure, poison and destroy all the corn and corn plants so growing on ten acres of the land so owned and occupied by plaintiffs as aforesaid, so that plaintiffs' said corn crop on said ten acres of land is wholly worthless."

There was a trial and at the conclusion of the evidence the defendant requested the court to tell the jury that under the issues made by the pleading the plaintiff was not entitled to recover, unless it was found by the jury that the injury to the plaintiffs' growing corn was caused by the negligent manner in which defendant's brick kilns were constructed and used; and thereupon the plaintiffs requested and the court granted them leave to amend their petition by striking therefrom wherever they occurred the words "carelessly and negligently." The defendant filed its motion to strike out the amendment on the ground that it constituted a departure from the original cause of action. This motion was by the court overruled. By agreement of parties the jury was discharged and the cause was submitted on the evidence to the court without instructions and whose finding and judgment was for plaintiffs, and defendant appealed.

Whether the amendment changed substantially the claim set forth in the original petition is a question which we need not stop to examine for the reason that it appears that after the motion to strike out was overruled defendant filed an answer and the case was tried on the issue joined. It appears from the record that the cause was submitted to the court on the amended petition and answer. It is thus seen that there was an answer interposed to the amendment and on the issue so joined the cause was tried. This amounted to a waiver of the defendant's right to have the ruling on the motion to dismiss reviewed by us. Scovill v. Glasner, 79 Mo. 449; Pickering v. Tel. Co., 47 Mo. 457; Sauter v. Leveridge, 103 Mo. 615, 15 S.W. 981; West v. McMullen, 112 Mo. 405, 20 S.W. 628; Holt v. Cannon, 114 Mo. 519; Liese v. Meyer, 143 Mo. 547, 45 S.W. 282.

In the original petition both the construction of the brick manufacturing plant and the manner in which it was operated was characterized as negligent and careless. In the amendment this characterization was omitted and the allegations thereof in other respects were unchanged. It was not necessary to charge the acts, of which the plaintiffs complain, were unlawfully done. It was only required to allege in substance facts which the law would say...