Riblet v. Spokane-Portland Cement Co.

• Decision Date: 01 October 1954
• Docket Number: SPOKANE-PORTLAND,No. 32824,32824
• Citation: 274 P.2d 574,45 Wn.2d 346
• Court: Washington Supreme Court
• Parties: Royal N. RIBLET and Mildred Riblet, husband and wife, Appellants, v.CEMENT COMPANY, a corporation, Respondent.

Page 346

45 Wn.2d 346

274 P.2d 574

Royal N. RIBLET and Mildred Riblet, husband and wife, Appellants, v. SPOKANE-PORTLAND CEMENT COMPANY, a corporation, Respondent.

No. 32824.

Supreme Court of Washington, Department 2.

Oct. 1, 1954.

A. O. Colburn, Harvey W. Clarke, Spokane, for appellants.

John D. MacGillivray, Witherspoon, Witherspoon & Kelley, Spokane, for respondent.

HILL, Justice.

This appeal concerns the amount of damages to which the appellants, Royal N. Riblet and Mildred Riblet, are entitled as the result of cement dust emanating from the plant of the respondent, Spokane-Portland Cement Company. For detailed factual background, see Riblet v. Spokane-Portland Cement Co., 1952, 41 Wash.2d 249, 248 P.2d 380. We there held that the operation of the cement plant constituted an actionable nuisance but, since the two-year statute of limitations applied, the Riblets were entitled to recover damages only for the two-year period immediately preceding the institution of their action. Upon remand to the superior court and after consideration of the evidence taken both before and after the remand upon the issue of damages, judgment was entered for $970.

The Riblets again appeal, contending that the damages allowed are grossly inadequate and that the trial court erred in refusing to allow damages for personal discomfort and annoyance.

The trial court found that the depreciation of rental value by reason of falling cement dust was $30 a month, or $720 for a two-year period. Appellants, while claiming that these damages are grossly insufficient and inadequate, assign error, not to the propriety of measuring the damages in terms of the lessened use value or of employing the decrease in rental value as evidence of the decrease in use value, but on the theory that the trial court misunderstood the estimates of the expert witnesses and did not take into consideration all the evidence in making its determination.

The unusual character and the cost of the improvements on the Riblet property, together with the hypothetical situations involved in a determination of the depreciation in rental or use value of the property in consequence of falling cement dust during the particular two-year period in question, resulted in some confusion among the expert witnesses, or at least in a confusing record. However, the trial court's finding on the amount of damages on this phase of the case, i. e., depreciation in the use and rental value of the premises, while seemingly low, is supported by substantial and credible testimony and will not be disturbed.

There is abundant testimony in the record concerning the various facilities on the Riblet property and the amount of loose dust which collected thereon. Appellants' witness, Orville Hubbell, estimated the cost of cleaning up the loose dust at $10,000. No other testimony relative to the cost of removal of this item was offered by either side. The trial court found that the cost of removal of the loose dust which had accumulated on the premises over the two-year period would be $250. As to Hubbell's estimate, the trial court remarked:

'Then, with respect to the testimony of the witness Hubbell, I think it is obvious that his estimate of the cost of cleaning off the loose dust which probably, as has been testified to, was landed there during the two-year period--his testimony it would cost $10,000 is just sheer fantasy because based on his own--he simply guessed at that; it doesn't help the Court a bit--but based on his own figures, the top figure that I can arrive at on that cleaning job, figuring a total of 43 days, eight hours a day, for two men, figuring in the cost of operating the truck at $430 ($10.00 a day for the 43 days), figuring in 25% profit, and as far as the record shows that would include supervision and use of equipment; but assuming all that, the top figure comes to only $3300 and some dollars. And that is figuring two days where he figured a day, or perhaps more than a day, and so on.

'In short, we have two problems before the Court. One is the measure of damage; and two, is there any evidence in the record by which this can be taken out of the realm of fantasy and speculation and the Court fix a figure without just pulling one out of the atmosphere.'

Hubbell testified that it would take two men two weeks to clear off eight hundred feet of three-foot sidewalk. His estimate for cleaning the swimming pool was that it would take two men a week. Mr. Riblet testified that he cleaned it every year himself and that it took him half a day to clean it and three quarters of a day to paint it, and that he had to have help to carry out a washtubful of sludge in buckets.

Appellants in their brief do not attempt to justify more than $3,360 of the Hubbell estimate. Even so they figure on two men to work on the swimming pool for seven days, to do what Riblet testified took him half a day, with help to carry out the sludge.

The trial court viewed the premises and, in addition to the evidence as to the area and the facilities from which the removal of dust was required, was clearly apprised of the extent of the removal job and in a position to know whether to give credence to Hubbell's estimates. It was within his province to pass upon the credibility of Hubbell's uncontradicted testimony, and he was entitled to disbelieve it, particularly that part based upon opinion where there were facts and circumstances tending to discredit it. Simmons v. Anderson, 1934, 177 Wash. 591, 32 P.2d 1005; Gilmartin v. Stevens Investment Co., 1953, 43 Wash.2d 289, 261 P.2d 73, 266 P.2d 800; Hawkinson v. Johnston, 8 Cir., 1941, 122 F.2d 724, 137 A.L.R. 420. See, also, Kelly v. Jones, 290 Ill. 375, 125 N.E. 334, 8 A.L.R. 796; 20 Am.Jur. 1030, 1059, Evidence, §§ 1180, 1208. The trial court having viewed the premises, its finding on such an issue as the cost of cleaning up loose dust is entitled to considerable weight. Austin v. City of Bellingham, 1912, 69 Wash. 677, 126 P. 59.

However, we will assume for the moment that appellants are correct in their contention that there is not 'a scintilla of evidence' to sustain the finding that the cost of cleaning up the loose dust would be $250. Except for the testimony of Hubbell, which neither the trial court nor this court is willing to accept, there is then no evidence to substantiate any other figure for that item. Under such circumstances, they have no ground for complaint, the award of damages being more than nominal. Gilmartin v. Stevens Investment Co., supra.

Appellants also urge that the trial court erred in failing to find that they are entitled to recover $25,000 as the cost of removal of the cement dust which had become permanently encrusted on their property during the two-year period. Their theory is that the total cost of removing the encrustation, which developed during an eleven-year period, would have been $75,000 in 1951 (as testified to by Hubbell, whose credibility has heretofore been discussed), and that, consequently, they are entitled to at least two elevenths of that amount, or $13,635, for the two years in question. However, they increase this figure to $25,000 because much more dust fell during the last five than during the first five or six years of the eleven-year period.

They rely upon Dunseath v. Hallauer, 1953, 41 Wash.2d 895, 253 P.2d 408, 412, which was an action to recover damages for the total loss of an orchard due to excessive and long-continued cold weather. We there upheld an award of ninety per cent of the value of the orchard, on the theory that damages to that extent had occurred subsequent to the date on which the defendant in that case became liable for any loss. Examined in its proper perspective, that case is of no assistance to the appellants here. There the court was convinced vinced that all except a very minor part of the damage to the orchard occurred subsequent to the particular date with which we were there concerned. In discussing that particular question we said:

'The uncertainty here is not as to the fact of damage, which would be fatal to a recovery by a plaintiff, but as to the amount of the total damage that occurred after January 15th. We find ample support for the findings of the trial court that the orchard had, prior to January 15, 1949, suffered some minor winter damage due to the periods of cold weather prior to that date, but that it was the extended and continuous period of extremely cold weather from the middle of January to the middle of February that 'resulted in the fatal damage to the Malott Orchards.' That finding being supported by competent evidence, Dunseath was entitled to recover from the appellants even though a monor part of the total damage did occur prior to January 15th.'

Actually, our doubt in that case was not whether the plaintiff had established that ninety per cent of the damage occurred after January 15th but whether the defendant had established that any measurable damage occurred prior to that date. We indicated that doubt in the next to the last paragraph of the opinion, where we said:

'In our opinion, if the trial court erred at all it was in finding that ten per cent (which seems high to us) of the total damage occurred before January 15, 1949.'

In the instant case, the evidence is that the additional encrustation which occurred during the two-year period in no way changed the appearance or the usability of the property. The condition was the same on May 22, 1950, as on May 22, 1948, except that the encrustation was thicker. There is no evidence that the cost of removing the encrustation would have been any more at the end of the two-year period than at the beginning. On this phase of the case, the appellants failed to establish either the amount of the damage to their property during the two-year period in question or the fact of any measurable additional damage during that period.

Appellants further assign error to the trial court's finding...