Schumacher v. The Shawhan Distillery Co.

• Citation: 165 S.W. 1142,178 Mo.App. 361
• Parties: JOHN R. SCHUMACHER, Respondent, v. THE SHAWHAN DISTILLERY COMPANY, et. al., Appellants
• Decision Date: 06 April 1914
• Court: Kansas Court of Appeals

165 S.W. 1142

178 Mo.App. 361

JOHN R. SCHUMACHER, Respondent, v. THE SHAWHAN DISTILLERY COMPANY, et. al., Appellants

Court of Appeals of Missouri, Kansas City

April 6, 1914

Appeal from Platte Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

Geo. W Day, Jas. H. Hull and T. C. Sparks, for appellants.

James H. Chinn, James W. Boyd and Ardey Gabbert for respondent.

OPINION

JOHNSON, J.

--This suit was begun in the circuit court of Platte county July 5 1906, against The Shawhan Distillery Company, a corporation, and George H. Baker, to recover damages for the pollution of a natural water course which runs in a westerly direction over land in Weston occupied by the corporation in its business of manufacturing whisky, and thence over intermediate farms to the Missouri River. Plaintiff owned and, with his family, lived upon one of these servient farms. The stream crossed his pasture and supplied water to the live stock he kept thereon.

The petition, which was voluminous, contained two counts: In the first, actual damages were claimed for injuries inflicted upon plaintiff's live stock by the alleged nuisance from March 1, 1905, to January 1, 1906, and in the second, both actual and punitive damages were claimed for the maintenance of the nuisance from March 1, 1906 to July 5, 1906, The second count contained additional averments that the nuisance rendered plaintiff's dwelling house uninhabitable and injured the health of his family. Among the defenses pleaded in the answer was a prescriptive right to use the stream to carry off the sewage from the distillery. A trial of the issues resulted in a verdict and judgment for plaintiff on the first count in the sum of $ 260 actual damages and on the second, for $ 210 actual and $ 3,000 punitive damages. A new trial was granted for the expressed reasons that the exemplary damages were excessive and that the verdict was the result of bias and prejudice. Plaintiff appealed and we affirmed the judgment on the ground that the trial judge, in granting a new trial, had not abused the discretion vested in him by law. [See Schumacher v. Distillery Co., 142 Mo.App. 343, 126 S.W. 966.]

In the statement of the case we referred to a judgment plaintiff recovered in 1900, awarding him a perpetual injunction against George H. Shawhan who then owned and operated the distillery "from fouling and polluting the waters of said stream by passing the offal and refuse from said distillery into said stream in such quantities and for such a length of time as to destroy the water in said stream for ordinary purposes or for stock," and to the affirmance of that judgment on Shawhan's appeal (93 Mo.App. 573.) Further we observed in the statement of the case "that said Shawhan was cited at different times since said decree, to appear before the said Platte county circuit court to answer for contempt for disobedience of said decree and punished therefor by fine."

In our decision we rejected the defense of a prescriptive right and held that "defendants had a right to a reasonable use of the stream provided that in so using it they did not interfere with plaintiff's reasonable right to also use it. This right in defendants did not extend so far as to permit them to pollute its waters and render them unfit for plaintiff's stock, or cause the water to emit unhealthy fumes. . . as they (defendants) were not prohibited by the injunction decree, which was introduced with the intention of showing that they had disobeyed it, from using it altogether, but permitted of its use in a proper manner, the court might well have come to the conclusion under the evidence that defendants did not intend to abuse their privilege in that respect and that at the time they did not believe they were so doing."

We regarded the injunction as binding, not only upon Shawhan, the defendant in the suit, but upon the Distillery Company he afterward organized and of which he became the president and manager and also upon Baker who fed cattle and hogs on the premises with the permission of Shawhan and to the direct profit of him and the Distillery Company. We view our decision as establishing in the law of this case the proposition that defendants, during the periods of the events in controversy, were under the legal duty of which the injunction decree fully apprised them, not to pollute the stream to the injury of the family and stock of plaintiff, and had actual knowledge that such defilement would be a wrongful and unlawful invasion of the legal rights of plaintiff.

After the case was returned to the circuit court an amended petition was filed in which Shawhan was joined as a defendant. Separate answers were filed, that of Shawhan consisting, in substance, of a specific denial of his alleged participation in the operations which are alleged to have caused the nuisance. A trial of the issues resulted in a verdict for plaintiff against all of the defendants in the sum of $ 250 actual damages on the first count, and $ 250 actual and $ 1000 punitive damages on the second. Separate motions for a new trial and in arrest were filed by the respective defendants and...