United States Smelting Co. v. Sisam

• Decision Date: 21 October 1911
• Docket Number: 3,056.
• Citation: 191 F. 293
• Parties: UNITED STATES SMELTING CO. v. SISAM.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F. 293

UNITED STATES SMELTING CO. v. SISAM.

No. 3,056.

United States Court of Appeals, Eighth Circuit.

October 21, 1911

(Syllabus by the Court.)

The measure of damages to a growing crop by a wrongful act which destroys it is its value at the time and place of its destruction.

The measure of the damage to a growing crop injured, but not rendered worthless, is the difference between the value of that crop before and after the injury at the time and place thereof.

Where a crop is injured from time to time throughout its growing season until its maturity by sulphurous fumes and their products, but is not destroyed so that it is cultivated throughout the season, harvested and marketed, the damage to it may be lawfully measured under these rules by the difference between the value at maturity of the probable crop, if there had been no injury, and the value of the actual crop at that time, less the expense of fitting for market that portion of the probable crop which was prevented from maturing by the injury.

Evidence of the kind of crop the land will ordinarily yield, of the stage of the crop's growth when injured or destroyed, of the average yield per acre of similar land in the neighborhood, the crop of which was cultivated in the same way and was not injured, of the market value of the crop injured, and of the market value of the probable crop without the injury at the time of maturity, of the expense that would have been incurred after the injury in fitting for market the portion of the probable crop the wrongful act prevented from maturing, of the time of the injury and of the circumstances which conditioned the probability of the maturing of the crop at that time in the absence of the injury, is competent, and may be weighed by the jury to find the damage to a growing crop at the time of its injury.

The owner of a residence which is rendered inconvenient uncomfortable, and unhealthy as a home by the nuisance of sulphurous fumes and their products thrown upon and into it by another may prove and recover in an action therefor the damages he suffers himself from the discomfort and sickness thereby inflicted upon his wife and the other members of his family who live with him therein, although he may not, and his wife alone may, maintain the cause of action for the direct personal injury to her.

In an action for injury to crops by sulphurous fumes, the fact that growing crops of apples and other fruits were destroyed before maturity, and there was no evidence what expense was saved to plaintiff in their cultivation from the time their destruction was patent to the time when they would mature does not show that the plaintiff was not entitled to recover any damages nor that his recovery should be limited to nominal damages, where there was evidence that plaintiff cultivated to maturity crops of potatoes, and their yield was only 100 bushels to the acre, when it probably would have been 300 bushels if the crops had not been injured, that the market value of the potatoes at the time of their maturity was 60 cents per bushel, and that the expense of harvesting and marketing them was 10 cents per bushel.

In an action for injury to crops from sulphur fumes, evidence held to authorize submission to the jury of the question what proportion of the fumes from different smelters was from that of the defendant.

Herbert R. Macmillan (Andrew Howat, on the brief), for plaintiff in error.

J. W Stringfellow (Brigham Clegg and Zane & Stringfellow, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN Circuit Judge.

Joseph H. Sisam, the plaintiff below, recovered a judgment against United States Smelting Company, a corporation, for $750 damages caused to his growing crops of lucerne, grain, vegetables, fruits, and berries by the sulphurous fumes emitted from its smelter during the years 1903, 1904, 1905, and 1906, and $50 on account of the discomfort, sickness, and inconvenience inflicted upon him, his wife, and the other members of his family by the nuisance these fumes maintained in and about his home. The Smelting Company sued out a writ of error, which presents its complaints of the course of the trial which its counsel have reduced to three: (1) That incompetent evidence of damages resulting from the injuries to the crops was received and a wrong rule for their measurement was given to the jury; (2) that there was no substantial evidence to sustain the recovery of such damages; and (3) that under the law the plaintiff could not lawfully prove or recover for injury to the health and comfort of his wife.

The specifications of error on which they rely to sustain their complaint that incompetent evidence of damages to the crops was received are (a) that after the plaintiff had introduced evidence that the fumes from the defendant's smelter injured his crops of potatoes in the year 1903 from time to time when the wind permitted them to float over his land throughout the growing season of the crop, and that he raised only 100 bushels to the acre, and would have raised 350 bushels to the acre if the fumes had not injured his crops, the court permitted him to testify what the value of potatoes was that year at the time of harvesting and gathering them over the objection that the market value at the time the injury was inflicted was the only competent evidence of value; (b) that, after similar evidence regarding the plaintiff's crop of potatoes in 1904 had been given, like testimony of their market value was received; and (c) that after like testimony regarding the plaintiff's crop of potatoes in 1905 had been given similar evidence of their market value was admitted. But there was no error in these rulings because at the time they were made the evidence was that the injury to the respective crops of potatoes from the fumes was continuous, though intermittent, throughout each growing season, and hence that it did not cease until the potatoes matured. The injury to each crop was not done, it was not finished, until the crop ceased to grow and when the crop ceased to grow the time for gathering and harvesting it had arrived. Conceding, therefore, that the time for measuring the damages was when the injury was done, the testimony of the market value of the potatoes at the time of the gathering and harvesting which the court below received was at that time.

The alleged error on which counsel rely to sustain their contention that the court gave to the jury the wrong rule for the measurement of the damages to the crops is that it charged the jury that the general measure of damages to growing crops by wrongful acts was the depreciation of the market price thereof caused by the acts at the time and place of the injury; that this rule could not be applied; that crops growing rarely have any market value; that the complicated circumstances of this case required them to consider the entire damage done to the entire crop injured in each year by the fumes; that this injury took place during the growing seasons from day to day so that necessarily their attention must be directed to some other period of time than the time of the injury; that the other time to which they should direct their attention was the harvest time when the crop first had a market value and to determine the extent of the plaintiff's injury they should consider what crop the plaintiff would have raised in each year if there had been no fumes from the smelter; that they should then ascertain the market value of that crop at the time when it first had a market value at the nearest place where it had such a value; that they should deduct from that sum the market value of the crop the plaintiff actually raised, and that they should take from the remainder the expense the plaintiff saved because he did not raise, harvest, or gather that portion of the crop he would have raised which he was prevented from raising by the fumes, and that the result would be the amount of damage to the crop.

It will be noticed that in this charge the court treated the crop of the plaintiff in each season as one and indivisible, and, considered in this way, the injury to it did not cease until its maturity, for the fumes diminished but did not destroy his crops of potatoes, wheat, beets, oats, and lucerne and he harvested them, while some of his crops of berries and fruits were destroyed before maturity. If the request had been made that the jury should be instructed to consider and find separately the damage at the time of their destruction caused by the destruction of the specific crops no part of which matured and that specific rules for the measurement of that damage should be given to the jury and this request had been denied by the court, questions would have been presented in this case which are not now here. This is a court for the correction of the errors of the court below, and that court commits no errors upon questions upon which it does not rule. No request was made in this case of the character which has been mentioned and none that a more specific charge upon the subject of the measure of damages should be given, and the only objection urged or exception taken was that the court instructed the jury to find the value of the probable crop and the actual crop in each season at their respective maturities, instead of at the time when the injury was inflicted. It is a complete answer to this criticism that the injury was inflicted at different times during the growing seasons when the direction of the wind and the condition of the atmosphere permitted the fumes and their products to settle on the crops, and this injury was not completed in any year until the crop of that year matured.

The true...