The State ex rel. Renfrow v. Service Cushion Tube Co.

• Decision Date: 15 February 1927
• Docket Number: 26805
• Citation: 291 S.W. 106,316 Mo. 640
• Parties: The State ex rel. William C. Renfrow et al. v. Service Cushion Tube Company et al., Appellants
• Court: Missouri Supreme Court

291 S.W. 106

316 Mo. 640

The State ex rel. William C. Renfrow et al. v. Service Cushion Tube Company et al., Appellants

No. 26805

Supreme Court of Missouri

February 15, 1927

Transferred from Kansas City Court of Appeals.

Order staying permanent injunction set aside, and judgment of circuit court affirmed.

Henry S. Conrad, L. E. Durham and Harold W. Judson for appellants.

(1) The petition does not state facts sufficient to constitute a cause of action. (a) The petition does not state facts sufficient to constitute a cause of action on behalf of the State in that there is no allegation that the bill is brought by the prosecuting attorney or the Attorney-General in the name of the State for the benefit of the public. State ex rel. Lamm v. Sedalia, 241 S.W. 656; State ex rel Trash v. Lamb, 237 Mo. 437; State ex rel. Tibbels v Iden, 221 S.W. 781; State ex rel. Wear v Springfield, 204 S.W. 942; Baker v. McDaniel, 178 Mo. 472. (b) The petition does not state a cause of action on behalf of complainants in that there are no allegations of special and peculiar damage to them. Cummings Co. v. Deere Co., 208 Mo. 81; Coombs v. Fuller, 228 S.W. 870; Hudson v. Walker, 170 Mo.App. 632; State ex rel. Lamm v. Sedalia, 241 S.W. 656. (2) The court did not have jurisdiction. Authorities supra.

Cooper & Neel and Grover Childers for respondents.

(1) The petition states facts sufficient to constitute a cause of action. The authorities cited by appellant do not support points urged to the contrary. Appellant cites five Missouri cases brought by the State at the relation of the prosecuting attorney. In none of the cases cited does the court hold that the State has not the right to sue at relation of a citizen. Respondent respectfully submits that a suit to abate a public nuisance is properly prosecuted at the relation of one or more private citizens. 29 Cyc. 1238; Attorney General v. Tarr, 148 Mass. 309; State ex rel. Hopkins v. Powder Mfg. Co., 259 Mo. 279; State ex rel. v. Vandalia, 119 Mo.App. 421; Eastern Dist. Attorney v. Lynn, 16 Gray (Mass.), 242; People v. Lumber Co., 116 Cal. 397; Securities v. Victoria, 16 B. C. 441; Davis v. Auld, 96 Me. 559; Penniman v. N. Y. Balance Co., 13 How. Prac. 40; People v. Ahern, 109 N.Y.S. 249; Old Forge Co. v. Webb, 65 N.Y.S. 503; High on Injunction, sec. 1554; 3 Pomeroy, Eq. Juris, sec. 1349; 1 Wood on Nuisances, sec. 79, p. 109; Cooper on Eq. Pleading, p. 102. (2) Respondent respectfully submits that complainants pleaded a public nuisance, proved such, and properly prosecuted same by Clarence A. Burney, prosecuting attorney, in the name of the State at the relation of the private citizen named in the petition. (2) The court did have jurisdiction. Authorities, supra.

White, J. All concur, except Graves, J., absent, and Gantt, J., not sitting.

OPINION

WHITE

This case was transferred to this court by the Kansas City Court of Appeals.

The suit was brought in the name of the State of Missouri at the relation of twelve citizens of Kansas City to enjoin the operation of defendants' plant for the manufacture of rubber products, on the ground that it was a nuisance. No temporary restraining order was asked or given by the circuit court. The trial of the case was begun in July, 1924, and August 7th of that year a judgment was rendered in favor of the plaintiffs. The court found that the factory operated by defendants constituted a public nuisance and permanently enjoined them from continuing its operation.

Dewit C. Cooper, John C. Cooper and Ernest Cooper filed a separate answer, but the petition does not state their relation to the corporation, but the evidence showed they were owners and operators of the corporation.

Defendants filed a motion for new trial, and September 20, 1924, the court took evidence on the cost of the removal of the defendants' machinery. The defendants, September 26, 1924, filed a motion to modify the injunction decree, on which the court heard evidence October 11, 1924. The court overruled the motion for new trial and the motion to modify.

On the same day the defendant filed a motion to stay execution pending appeal. That motion was overruled, but the court of its own motion stayed execution for a period of fifteen days.

The defendants, November 8th, filed their application for appeal and appeal was allowed to the Kansas City Court of Appeals. On the motion of the defendant the Court of Appeals, February 28, 1925, modified the injunction order so as to allow the defendant to operate its factory by making changes and improvements so as to eliminate the objectionable features. The order further provided that the court reserved the right to revoke the modification at any time after ten days on a showing that the nuisance features had not been eliminated.

June 30, 1925, the Kansas City Court of Appeals of its own motion transferred the case to this court because the amount involved exceeded the jurisdiction of that court. The defendants in this court, September, 1925, filed motion to modify the injunction order so as to permit the operation of their plant pending appeal. This motion was supported by affidavits. Plaintiffs filed counter affidavits to the effect that the nuisance features of defendants' factory remained as before. This court overruled the motion, but continued the order of the Kansas City Court of Appeals in force. The respondents complain of great hardship by reason of the continuance of the nuisance on account of the order staying the enforcement of the injunction pending the appeal. It may be noted that no injunction bond was filed, in the first place, to protect defendants in case of a favorable result to them.

The defendants' factory was situated at the corner of Tenth and Cleveland streets, in Kansas City. It was a neighborhood of residences; by the evidence fifteen houses were shown to be located within one hundred and fifty feet of the factory. Residences occupied most of the space for two or three blocks in every direction. A Catholic church was within two blocks of the factory, some stores and other business houses on Twelfth Street, two blocks to the south, and on Ninth Street, one block to the north. Also some flats at the corner of Cleveland and Ninth streets. Cleveland Street runs north and south, while Tenth Street runs east and west.

The evidence showed that great volumes of black smoke issued from the factory chimneys and noxious odors were given off. A quantity of evidence was introduced describing the nature of these odors. They were mentioned as suggesting burning rubber, and were compared with skunks and rotten eggs. Several witnesses testified that it made people sick; women and girls were so nauseated that they could not eat their meals; people in the neighborhood were unable to sleep on their sleeping porches. Evidence also showed that disquieting noises issued from the plant. They are described as popping noises, like the report of a pistol. Some compared them to young cannons. Detonations occurred as early as 4:30 in the morning, and as late as 11:30 at night, waking people in the neighborhood.

There was also a great deal of testimony showing vibrations caused by the operation of machinery, such as to crack the windows, the plastering and paper on the walls of the houses and to rattle the kitchen utensils. The plaintiffs introduced twenty-two witnesses who testified to the offensive odors, the harassing noises and the vibrations. The conditions were described as unbearable, particularly in the summer time, so that it was impossible to live in any comfort.

Defendants introduced as many or more witnesses to show that the offensive features of the factory did not exist. Four of those witnesses were chemists, or other experts, who examined the plant at the instance of defendants and testified about the substance used in the factory. Two were part owners, and two were employees. Six of them included a newspaper reporter, some insurance men, a banker, and others who visited the place for a few minutes. It was shown that three or four of the witnesses had received fifteen dollars each as expenses for appearing for defendants in a criminal proceeding.

About a half dozen of the residents of the community testified in defendants' behalf to the effect that the nuisance was not as bad as plaintiffs' witnesses had described it. Plaintiffs introduced evidence to impeach one or two of defendants' witnesses.

I. Appellants complain that the petition does not state a cause of action on behalf of the State, because there is no allegation that the suit was brought by the prosecuting attorney or Attorney-General in the name of the State for the benefit of the public.

Defendants did not demur to the petition on the ground of defect...