Town of Dickson v. Stephens

• Decision Date: 30 November 1935
• Citation: 96 S.W.2d 201,20 Tenn.App. 195
• Parties: TOWN OF DICKSON v. STEPHENS.
• Court: Tennessee Court of Appeals

96 S.W.2d 201

20 Tenn.App. 195

TOWN OF DICKSON v. STEPHENS.

Court of Appeals of Tennessee, Middle Section.

November 30, 1935

Certiorari Denied by Supreme Court July 3, 1936.

Appeal in Error from Circuit Court, Dickson County; J. D. G. Morton Judge.

Action by J. W. Stephens against the Town of Dickson. Judgment for the plaintiff, and defendant appeals in error.

Affirmed and judgment entered for plaintiff in accordance with opinion.

F. S Hall and Clark Leech, both of Dickson, for plaintiff in error.

Earl A. Brown and J. B. White, both of Dickson, and W. M. Leech, of Charlotte, for defendant in error.

FAW Presiding Judge.

The defendant in error, J. W. Stephens (who was plaintiff below and will be hereinafter so designated), is the owner of a tract of farming and pasture land in the Fifth Civil district of Dickson county about one mile from the corporate limits of the town of Dickson, containing approximately 500 acres, and a stream of water known as Piney river flows through said farm.

On November 12, 1931, the plaintiff sued the town of Dickson, a municipal corporation, in the circuit court of Dickson county, for $10,000 as damages for the alleged pollution of the waters of Piney river by the drainage of sewage from a "disposal plant" or "septic tank" constructed by the defendant below (and hereinafter called defendant) on the bank of Piney river about a half mile from Dickson and a half mile or more above plaintiff's farm.

The case was tried to a jury three times in the circuit court. At the first trial (November term, 1932), the jury failed to agree and a mistrial was entered. At the second trial (in April, 1933), the jury failed again to agree and a mistrial was entered.

At the November term, 1933, the case was tried the third time, and the jury found the issues in favor of the plaintiff and assessed his damages at $100, and judgment of the court was thereupon rendered that plaintiff J. W. Stephens have and recover of defendant town of Dickson the sum of $100, together with all the costs of the cause. After its motion for a new trial had been overruled, defendant prayed and was granted an appeal in error to this court, which appeal was duly perfected, and the case is before this court for review upon a record of 1,240 pages, exclusive of several documentary exhibits and 181 pages of assignments of errors and briefs.

However, the evidence heard and the proceedings had at each of the three trials were preserved by a separate bill of exceptions, seasonably authenticated and filed in each instance, and the defendant town of Dickson has assigned errors upon certain rulings of the trial court at each of the three trials. Where bills of exceptions have been thus preserved upon several successive trials of a case in the trial court, the established practice is for the appellate court to consider the record of each trial separately and in the order of time in which the trials occurred. Memphis & C. R. Co. v. Scott, 87 Tenn. 494, 11 S.W. 317; Jenkins v. Hankins, 98 Tenn. 545, 41 S.W. 1028; Baugh v. Nashville, C. & St. L. R. Co., 98 Tenn. 119, 121, 38 S.W. 433; Barnes v. Noel, 131 Tenn. 126, 134, 174 S.W. 276.

We shall, therefore, first dispose of the assignments of error directed to the first trial.

On the first trial a motion for a directed verdict in its favor was made by defendant, and overruled by the trial court, at the close of the plaintiff's evidence, and again at the close of all the evidence. After a mistrial had been entered because of the failure of the jury to agree on a verdict, the defendant moved the court to reconsider its action in entering a mistrial in the case and to sustain the motion theretofore made for a directed verdict in favor of the defendant.

The first three of the assignments of error filed by the defendant in this court are that: (1) "The court erred in overruling defendant's motion for a directed verdict at the conclusion of the plaintiff's proof in chief"; (2) "The court erred in overruling the defendant's motion for a directed verdict offered at the conclusion of all the proof"; and (3) "The Court erred in overruling defendant's motion to reconsider its action in entering a mistrial and in not sustaining defendant's motion for a directed verdict."

The defendant is not in a position to assign error upon the action of the trial court in overruling its motion for peremptory instructions made at the close of plaintiff's evidence in chief, for the reason that defendant did not elect to stand upon its motion then made, but proceeded to put on witnesses in its own behalf, and thereby waived its right to rely upon said motion. Tennessee Central Railway Co. v. Zearing, 2 Tenn.App. 451, 454, and authorities there cited. The first assignment of error is therefore overruled.

If the trial court erroneously overruled defendant's motion for a directed verdict at the close of all the evidence, such error is available to the defendant on this appeal, notwithstanding the disagreement of the jury and entry of a mistrial, for the defendant (having preserved its exceptions and appealed from the final judgment) is entitled to the benefit of the former trial without regard to the merits of the case as developed on any subsequent trial. Barnes v. Noel, supra, 131 Tenn. 126, at page 133, 174 S.W. 276; Chickamauga Quarry & Construction Co. v. Pundt, 136 Tenn. 328, 331, 189 S.W. 686; Merriman v. Coca Cola Bottling Co., 17 Tenn.App. 433, 447, 68 S.W.2d 149.

It appears that the aforesaid motion of the defendant for a directed verdict at the close of all the evidence specified, with great particularity, the grounds on which it was rested.

A motion for a directed verdict couched in general terms may be a sufficient predicate for an assignment that the trial court erred in declining to sustain such motion; but "if the motion purports to specify the particular ground on which it is rested, the moving party will, on appeal, be confined to the grounds thus specified." Lawson v. Producers' & Refiners' Corporation, 157 Tenn. 455, 459, 9 S.W.2d 1026, 1027; Tennessee Central Railway Co. v. Zearing, supra, 2 Tenn.App. 451, at pages 454, 455.

The motion now under consideration was as follows:

"Comes the Defendant, Town of Dickson, at the conclusion of all the proof, and moves the Court to instruct the jury to return a verdict in favor of the defendant, for the following reasons:

"1. That the preponderance of the evidence shows that Piney River on the Stephens place is as pure, as clear and unpolluted, to the extent that it could not be a nuisance.

"2. That tests made by the State Department of Health, introduced as evidence in this cause, shows undisputedly that the condition of Piney River on the Stephens' property is not a nuisance.

"3. That no evidence has been introduced upon which a jury could base a verdict against the defendant; no actual damages having been proven.

"4. The evidence introduced in regard to damages suffered by the plaintiff is so meager, vague, uncertain and speculative that no judgment for damages could be based upon it.

"5. The preponderance of the evidence shows the water on Stephens' property to be fit for consumption by all kinds of live stock.

"6. The undisputed evidence is that the property is renting for exactly the same rental that it was prior to the installation of the sewerage system, that is one-half of the profit.

"7. There is no evidence that the water in Piney River on the Stephens' property was not fit to drink by cattle during the years of 1929, 1930 and 1931.

"8. The preponderance of the evidence shows the septic tank to be of permanent construction, operating without negligence, and not subject to change, and the preponderance of the evidence shows the condition of the creek on Stephens place to be in the same condition now as before the installation of the said tank, and no evidence has been introduced in regard to damages suffered by the plaintiff upon which a verdict could be based.

"9. The construction of the said tank, and its operation without negligence, having been proven, by a preponderance of the evidence, to be lawful,--the burden of proof is upon the plaintiff to prove it to be a nuisance, nevertheless, the preponderance of the evidence shows clearly that it is not a nuisance.

"10. The preponderance of the evidence shows that 1929 was an exceedingly dry year, and that conditions complained of in regard to cattle getting through the fences existed, not only on plaintiff's premises, but also on the premises of plaintiff's witness, T. M. Dotson, on White Oak Creek in Humphreys County.

"11. The preponderance of the evidence shows that the Town of Dickson, through the installation and operation of its sewerage system, has inflicted no actual damage to the plaintiff; nor has he suffered any special damage by reason of any act of the defendant.

"12. Because the preponderance of the evidence is in favor of the defendant and against the plaintiff's contention.

"13. Because the preponderance of the evidence shows the Town of Dickson to be a municipal corporation of the State of Tennessee with legislative authority to install and operate a sewerage system, septic tanks, etc., and as such, and as a riparian owner on a part of Piney Creek, that the use it is making of said stream is a reasonable use and not a burden to the plaintiff in this cause.

"14. That the use made of the said Piney Creek complained of is shown by a preponderance of the evidence, not to be such a use as would amount to a taking of the plaintiff's property, either temporary or permanent.

"15. That the preponderance of the evidence shows that there is no odor from the said stream as it flows through the plaintiff's premises as would entitle plainti

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