Soap Corporation of America v. Balis, 15050.

• Decision Date: 23 September 1949
• Docket Number: No. 15050.,15050.
• Citation: 223 S.W.2d 957
• Parties: SOAP CORPORATION OF AMERICA v. BALIS et al.
• Court: Texas Court of Appeals

223 S.W.2d 957

SOAP CORPORATION OF AMERICA v. BALIS et al.

No. 15050.

Court of Civil Appeals of Texas. Fort Worth.

September 23, 1949.

Rehearing Denied November 4, 1949.

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Nelson, Montgomery & Robertson, Otis E. Nelson and H. P. Hodge, Jr., all of Wichita Falls, for appellant.

Kearby Peery and John Davenport, both of Wichita Falls, for appellees.

HALL, Justice.

Appellee Wiley Balis and thirteen parties sued appellant Soap Corporation of America in a district court of Wichita County, Texas, for damages to their real property and their persons caused by appellant's grinding and processing soap in the vicinity of their homes, wherein such manufacturing process emitted odors that smelled like dead fish, dead cattle or similarly decayed material. They further alleged and testified, in substance, that in the operation of such plant it produced foul and obnoxious odors that spread into their homes, settled on their clothing and prevented the enjoyment of their homes, which caused them personal annoyance and discomfort. They alleged such nuisance was permanent. Three plaintiffs took a non suit.

Appellant answered by way of general denial and by special defenses, such as res adjudicata based upon a judgment denying the City of Wichita Falls an injunction; that if appellees suffered such inconvenience it was no more than would be suffered by any citizen of Wichita Falls, therefore appellees were not inconvenienced any greater than the average normal citizen of the neighborhood and therefore not entitled to recover. That appellees, or some of them, were not persons of ordinary tastes, habits or sensibilities, by reason of which appellant was not liable to them for their injuries. That appellant Soap Corporation was operating its plant with the most up to date and modern machinery which could be secured and denied that dirt and dust were escaping from its plant; that appellant had a contract with the City of Wichita Falls to lease a tract of ground near the soap plant for $1500.00 per year.

Seventy-two issues were submitted to the jury and upon their answers to same the court entered judgment in favor of appellees, wherein each of the male appellees received the sum of $500.00 as damages sustained for personal discomfort and annoyance, the female appellees received the sum of $1,000.00 for discomfort and annoyance, and appellees also received judgment for a 33-1/3% depreciation in their property, which was the difference the jury found between market value immediately before appellant's plant began operation and at the time of trial.

The court denied appellees an injunction. Appellant appeals, submitting 213 points of error. For benefit of brevity we shall group appellant's points of error while discussing all points briefed.

The first complaint involving many of appellant's points is directed to action of the court in not instructing a verdict for it for the reason there was no pleading or proof which would disclose appellees suffered an injury any greater than that which was common to the public in general. In other words, if there was a nuisance it was a public nuisance as distinguished from a private nuisance, thereby denying individuals a right of recovery. The heart of its contention seems to be that because such odors were smelled at a greater distance beyond the premises of appellees and annoyed people practically all over the City of Wichita Falls, that such penetration of the bad odors emanating from the plant would bar those living in the immediate vicinity from recovery, and cites for authorities King v. Columbian Carbon Co., 5 Cir., 152 F.2d 636; 39 Am. Jur., p. 285; 46 C.J., pp. 646-647; City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754; Shephard v. Barnett et al., 52 Tex. 638; and others of a similar nature. Suffice it to say we have read all of appellant's cases cited on this point and have come to the conclusion that appellees' cause of action for private nuisance is sustainable.

One of the cases cited by appellant under 46 C.J., p. 646, being the State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, 1042, 39 L.R.A.,N.S., 187, gives, we think, a correct definition of a public nuisance, as follows: "A nuisance is public if it affects a community at large, or if it affects a place where the public have a right to and do go, such as a park, street, or alley, and which nuisance necessarily annoys, offends, or injures those who come within the scope of its influence." We also find the definition outlined in the King case, supra, sufficiently defines a private nuisance as follows: "A private nuisance is anything done to the hurt or annoyance of the lands, tenemants, or hereditaments of another; that produces damages to but one or a few persons and cannot be said to be public."

We deem it unnecessary to cite cases wherein a cause of action, such as the one in question, has been sustained by the courts. The King case, supra, is sufficient authority upon this point. We overrule appellant's contention as outlined in the many points set out in its brief upon this question.

We shall now discuss appellant's points of error complaining of the court's submitting special issue No. 3 to the jury because said issue "inquired as to whether or not the odors had been and will be so unusual and excessive, etc., instead of inquiring of the jury whether or not the condition brought about the Appellant in the use of its property was so unusual and excessive that it necessarily caused injury or damage, etc., the ultimate issue of fact being not whether the odors were so unusual or excessive, but whether or not the Appellant's use of its property was so unusual and excessive to cause the injury or damage inquired about." We interpret such objection to be leveled at the court's failure to submit the issue upon negligent operation or negligent construction of appellant's plant. It cites for authorities St. Louis, S. F. & T. R. Co. v. Shaw, 99 Tex. 559, 92 S.W. 30, 6 L.R.A., N.S., 245; Columbian Carbon Co. v. Tholen, Tex.Civ.App., 199 S.W.2d 825, writ ref.; Royalty v. Strange, Tex.Civ. App., 220 S.W. 421; King v. Columbian Carbon Co., 5 Cir., 152 F.2d 636; Smith v. Columbian Carbon Co., Tex.Civ.App., 196 S.W.2d 660, by the Supreme Court, 145 Tex. 478, 198 S.W.2d 727; City of Temple v. Mitchell, Tex.Civ.App., 180 S.W. 2d 959; and Rainey v. Red River T. & S. R. Co., 99 Tex. 276, 89 S.W. 768, 3 L.R.A., N.S., 590, 122 Am.St.Rep. 622, 13 Ann.Cas. 580.

It is not essential to allege and prove negligence in all cases of nuisance. In the Tholen case, supra, cited by appellant, the rule is stated : "To state the distinction another way, it is only where an act or a condition can become a nuisance solely by reason of the negligent manner in which it is performed or permitted, that no right of recovery can be shown independently of the existence of negligence, as appellant here contends. That rule is thus stated in 31 Texas Jurisprudence, page 421, Sec. 11: * * *." (See other cases there cited.) The court's holding in the Tholen case is against appellant's contention. The King case, supra, cited by appellant, is also against its contention. It was there held : "A business which is lawful in itself may become a nuisance either because of the locality in which it is carried on or because it is conducted in an improper manner. 31 Tex.Jur. 424, § 13; 39 Am.Jur. 325, § 44. * * * In determining whether a thing or a business is a nuisance the location and surroundings are important and should be considered with other circumstances of the case. A business or industry otherwise lawful may be a nuisance because of the place where it is located or carried on, and although it is not in itself a nuisance, it may become such when it is located in a place forbidden by law or wholly uncongenial to its type of enterprise. `A nuisance may be a right thing in the wrong place, like a pig in the parlor instead of the barnyard.' Justice Sutherland in Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016. See Gose v. Coryell, 59 Tex.Civ.App. 504, 126 S.W. 1164."

So it is the law in Texas that a person cannot be driven from his home or be forced to live in uncomfortable surroundings by the unlawful acts of another person or company which, without due regard to its neighbors' rights, erects a plant in the midst of a residential section that will, regardless of the care it may take in its operation, allow obnoxious odors to emanate therefrom causing discomfort to those in the immediate surroundings. In such cases the proof of negligence is not a prerequisite to recovery, as outlined in the Tholen and King cases, supra. We overrule appellant's contention.

Appellant complains in twenty-nine of its points of error that the judgment of the trial court should be reversed because it is based upon insufficient evidence. We have read the testimony of appellees, together with testimony they adduced from other witnesses, which proves to us that there was sufficient evidence to go to the jury. The general nature of such testimony is that appellees were affected continuously with the odors emanating from said plant, especially when the wind was from the direction of the plant. Appellees testified they lived in the immediate vicinity of the soap factory, occupying their homes, eating their meals and sleeping in them. One appellee testified the odors were so bad as to sometimes compel them to leave their home; other appellees testified that such odors made them so sick at their stomachs they were unable to eat. Many witnesses testified they could smell the odors emanating from appellant's plant most anywhere in the City of Wichita Falls. We overrule this contention of appellant.

Appellant's points of error Nos. 7 to 12 inclusive, and twenty-six other points are leveled at action of the court in rendering judgment for appellees H. R. Leverett et ux and other appellees because neither of them was...