Reynolds Metals Company v. Lampert

• Decision Date: 13 June 1963
• Docket Number: No. 17941.,17941.
• Citation: 316 F.2d 272
• Parties: REYNOLDS METALS COMPANY et al., Appellants and Cross-Appellees, v. Julius LAMPERT and Evelyn Lampert, Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

316 F.2d 272 (1963)

REYNOLDS METALS COMPANY et al., Appellants and Cross-Appellees, v. Julius LAMPERT and Evelyn Lampert, Appellees and Cross-Appellants.

No. 17941.

United States Court of Appeals Ninth Circuit.

March 18, 1963.

Rehearing Granted June 13, 1963.

King, Miller, Anderson, Nash & Yerke, Fredric A. Yerke, Jr., and Clifford N. Carlsen, Jr., Portland, Or., Gustav B. Margraf and W. Tobin Lennon, Richmond, Va., for appellants and cross-appellees.

Koerner, Young, McColloch & Dezendorf, Herbert H. Anderson, and Michael G. Holmes, Portland, Or., for appellees and cross-appellants.

Before HAMLEY and DUNIWAY, Circuit Judges, and CROCKER, District Judge.

CROCKER, District Judge.

Appellant Reynolds Metals Company operates an aluminum reduction plant near Troutdale, Multnomah County, Oregon. Appellant Henry W. Shoemaker was plant manager at the time of the commencement of the action.

Appellees Julius and Evelyn Lampert own certain real property near Troutdale which they used for growing crops, including gladiolus bulbs, bulblets and flowers.

On June 30, 1959, appellees commenced an action in the Circuit Court of the State of Oregon for the County of Multnomah, alleging that their real property had been invaded by gases, fumes and particulates (commonly referred to as fluorides) emanating from appellants' plant and seeking, for the years 1957, 1958 and 1959, the following damages:

1. $3,191.31 as the cost of obtaining substitute real property for growing bulbs (including rent, cost of fertilizer and the cost of travel between the rented property and appellees' own property).

2. $12,500 for being deprived of the use and enjoyment of their real property.

3. $3,020 for damage to gladiolus bulbs.

4. $1,650 for damage to gladiolus blooms.

5. $500,000 in punitive damages.

Appellants removed the action to the District Court on the basis of diversity of citizenship and the requisite jurisdictional amount. The case was tried before a jury and resulted in verdict and judgment for appellees in the amount of $10,017.

Appellants and appellees appeal on the basis of certain alleged errors in the District Court's instructions to the jury, appellants contending that:

1. It was error for the Court to refuse to instruct the jury that appellees might not recover both damages for loss of use and enjoyment of their real property and damages for expenses incurred by them in obtaining a substitute for such real property.

2. It was error for the Court to refuse to instruct the jury that appellees might not recover travel expense and travel time and to instruct the jury that such damages were recoverable.

3. It was error for the Court to instruct the jury that they were required to return a verdict in favor of appellees of at least nominal damages.

4. Appellees contend in their cross-appeal that the Court erred when it struck and withdrew from consideration of the jury appellees' claim for punitive damages.

Considering these contentions seriatim we hold:

1. The jury was erroneously instructed that appellees could recover damages both for the loss of the use of their property and for the cost of obtaining substitute property. It is clear, and appellees do not seriously dispute, that while recovery may be had for the loss of use of real property, where a substitute can be and is obtained, the measure of damages for the loss of use of the original property is the cost of renting the substitute. See 15 Am.Jur. Damages, Section 129; 4 Restatement of the Law of Torts, Section 931. Appellees, however, contend that the Court below did not err in refusing to give appellants' proffered instructions for the reason that the instructions referred only to damage to the gladiolus bulbs and plants on the property which appellees own, whereas appellees were entitled to recover also for the damage to the plants on the rented land.

There is no merit to this contention. The court instructed the jury as to appellees' right to recover for the damage done to the gladioli on the rented land. Transcript p. 360 and 366 Appellants' Requested Instructions 2, 2B and 2C, when read, show clearly that they were designed solely to avoid the possibility of a double recovery resulting from the consideration of both the use value of appellees' land and the cost of renting the substitute land as the measure of damages for loss of use.

There is little likelihood that appellants' instructions would have confused the jury on the issue of appellees' right to recover for the plants injured on rented lands, and one of the instructions should have been given by the Court to the jury.

Appellees next contend that if appellants' requested instructions were given, an element of compensation would have been excluded. They seem to equate loss of "enjoyment," as used in the term "use and enjoyment," with the concept of "annoyance, inconvenience and discomfort," which we will assume would have been a proper additional element of damage below. See Quillen v. Schimpf, 133 Or. 581, 291 P. 1009; Porges v. Jacobs, 75 Or. 488, 147 P. 396; 4 Restatement of the Law...