Ruppel v. Ralston Purina Co., 52118

• Decision Date: 12 February 1968
• Docket Number: No. 52118,No. 1,52118,1
• Citation: 423 S.W.2d 752
• Parties: James F. RUPPEL and Hester S. Ruppel, (Plaintiffs) Respondents, v. RALSTON PURINA COMPANY, a Corporation, (Defendant) Appellant. Jan, 8, 1968. Motion for Rehearing or to Transfer to Court En Banc Denied
• Court: Missouri Supreme Court

Page 752

423 S.W.2d 752

James F. RUPPEL and Hester S. Ruppel, (Plaintiffs) Respondents, v. RALSTON PURINA COMPANY, a Corporation, (Defendant) Appellant.

No. 52118.

Supreme Court of Missouri, Division No. 1.

Jan, 8, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 12, 1968.

Spencer, Hines & Petri, Columbia, for plaintiffs-respondents.

John C. Kibbe, California, J. A. Fraser and F. W. Schwarz, St. Louis, for defendant-appellant.

WELBORN, Commissioner.

This is an appeal by Ralston Purina Company from a judgment, entered on a jury's verdict, awarding James F. Ruppel and Hester S. Ruppel actual damages of $25,000 and punitive damages of $15,000 for injury to their property resulting from the operation of Ralston Purina's turkey processing plant in the City of California, Missouri.

In 1955, James F. Ruppel and his wife, Hester, purchased a 94-acre tract of land, lying east of California, for $8500. Mr. Ruppel is a brick mason and he has from time to time built houses for sale. His idea in purchasing the property was eventually to develop it for residential purposes. In 1961, 40 acres of the tract lying alongside and north of the Missouri Pacific Railroad tracks were sold to the City of California for $13,600. Mr. Ruppel knew at the time that the city proposed to use the land for industrial purposes, although the exact use proposed was not known.

In November, 1962, Mr. Ruppel began construction of a house on the 54-acre tract remaining. Mr. Ruppel did the work himself and completed a house which served as the residence of the Ruppel family which included five children. Ruppel valued the completed house at 'around $11,500.'

In April, 1963, construction began on the 40-acre city-owned tract of a plant to be occupied by Ralston Purina for processing turkeys. The plant was financed by municipal revenue bonds and leased to Purina. The cost of the project was in excess of $4,000,000.

The primary function of the operation of the plant is the killing of live turkeys, trucked to the plant, and the processing of the carcasses for human consumption. The plant is designed to handle approximately 350,000 pounds of live weight birds per day or a maximum of some 20,000 birds. The killing operation is seasonal, starting in late spring or early summer and ending around the last of the year. During periods of peak production in late summer, two shifts are required to handle the operation. The packing operation is year-round. When the plant first began operation, in September, 1963, approximately 200 persons were employed. At the peak of production, almost 500 persons are employed, and at the time of the trial of the case (December, 1965), 400 persons were employed.

In addition to the facilities for killing and preparing the birds for human consumption, the plant includes facilities for handling the waste products incidental to the killing and packing. The byproducts plant began operation in June, 1964. Generally, two categories of waste are processed. The first is the feathers, which are removed from the birds mechanically and are transported in water through a flume to the feather reel in the drying, or byproducts plant. The water is separated from the feathers in the reel and the feathers are transferred to a cooker where they are 'hydroized' under high temperature steam and then cooked. After cooking the feathers are dried and ground into a mealy substance.

The second category of waste consists of the remaining inedible portions of the birds, such as heads, feet and entrails. These parts are also conveyed from the processing plant to the byproducts plant in water. They are removed from the water and cooked, also producing in the end a mealy substance. The end product of the processing of both types of waste is used in pet and poultry foods manufactured by Ralston Purina.

Operation of the plant involves the use of large quantities of water, some 70 gallons per bird. To handle the waste at the plant, the City of California constructed three sewage lagoons in the vicinity of the plant and on the 40-acre that obtained from the Ruppels. The lagoons are located near the road which runs east and west and divides the Ruppels' land from the city-owned land. The easternmost lagoon is some 400 to 500 from the Ruppel house. The second lagoon is directly south some 300 from the Ruppel house. The third lagoon is to the west of the second. The lagoons have a total area of approximately 18 acres. The waste water from the byproducts plant flows into the first and second lagoons. Sanitary sewage from the processing plant also flows into the No. 2 lagoon. No. 1 lagoon drains into No. 3, as does the No. 2 lagoon. From the No. 3 lagoon, the effluent flows through a 12-inch line for some 3600 where it is discharged into a dry ditch.

The plans for the lagoon sewage treatment facilities were prepared by Mr. Clifford Smith, an engineer who had been employed by Ralston Purina for some twenty years and who had handled the company's sewage problem for 15 or 20 years. The construction of the lagoons was done on behalf of the City of California by its mayor. Problems with rock encountered during the construction reduced the area of the lagoons from approximately 25 acres as planned to 18 acres. The land on which the lagoons are located is not leased to Ralston and the operation and maintenance of the lagoons are the responsibility of the city.

Plaintiffs' petition in this action, filed in August, 1964, charged that odors generated at the plant, laud and unusual noises caused by crying fowls, flies and insects resulting from the accumulation of filth, the flow of waste water from the plant onto plaintiffs' land, and the improper design and use of the sewage lagoons which caused the contamination of the plaintiffs' well constituted a nuisance. Although there was evidence concerning the noise, plaintiffs' verdict-directing instruction submitted the unreasonable use by defendant of its property to plaintiffs' damages as: '(a) Ill-smelling odors escaped from the premises used by Ralston-Purina onto the Ruppels' property, and (b) Ralston-Purina Company deposited quantities of waste materials into the sewage disposal system in excess of the capacity of the system, and (c) Large quantities of bugs were bred at the sewage disposal system, and such bugs came onto the Ruppels' property, and (d) Ralston-Purina Company deposited waste materials into improperly designed sewage lagoons and thereby caused contaminated water to escape from the sewage lagoons onto the Ruppel property.'

On this appeal, appellant's assignments of error are limited to charges that the trial court erred in submitting plaintiffs' case as one for damages for a permanent nuisance and in submitting the issue of punitive damages. We need consider only such further facts as bear upon these issues.

Plaintiffs' evidence, substantiated in varying degrees by that of the defendant, was that unbearably foul odors were produced by the sewage lagoons and the operation of the byproducts plant. Appellant does not question the sufficiency of the evidence to support a finding of a nuisance by reason of such conditions. Appellant does contend that whatever deficiency might have existed in the plant and its operation was remediable and abatable. Therefore, according to appellant, submission of plaintiffs' claim for damages for a permanent nuisance was erroneous.

The issue here presented being one of submissibility, we, of course, must examine the evidence in the light most favorable to plaintiffs. So viewed, the evidence showed that odors from the lagoons persisted at the time of the trial. The persistence of such odors, in spite of the defendant's efforts to rectify the condition would support a finding that the nuisance was permanent and unabatable. There was testimony that sewage lagoons, properly constructed and properly operated, would not produce offensive odors. However, plaintiffs' witness, Paul Decker, Chief of Designs and Construction and Operation of the Missouri Water Pollution Board, testified that 5% of the lagoons under the jurisdiction of that agency do have odors. There was testimony in this case that defendant and the city had taken certain steps to reduce the odor output of these lagoons. For example, the defendant had installed a clarifier in the line in which waste flowed from the byproducts plant to the lagoons. This device was designed to reduce the volume of solid waste which flowed into the lagoons. However, plaintiffs' evidence was merely that the clarifier would 'help' and might increase the capacity of the lagoons by 15%. In view of such evidence, the jury certainly would not be required to find that the clarifier would certainly eliminate the odors.

As appellant points out, there was evidence that some of the known sources of lagoon odors could be remedied. For example, there was testimony that the freezing and thawing of lagoons causes odors and that such situation may be remedied by the use of sodium nitrate. There was testimony that the accumulation of solid materials in weeds and grass along the banks of...