United Verde Copper Co. v. Jordan

• Decision Date: 07 September 1926
• Docket Number: No. 4735.,4735.
• Citation: 14 F.2d 299
• Parties: UNITED VERDE COPPER CO. v. JORDAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

14 F.2d 299 (1926)

UNITED VERDE COPPER CO. v. JORDAN et al.^*

No. 4735.

Circuit Court of Appeals, Ninth Circuit.

August 2, 1926.

Rehearing Denied September 7, 1926.

Anderson, Gale & Miller, of Prescott, Ariz., and Rice & Mathews, of Globe, Ariz., for plaintiff in error.

Robert E. Morrison and Louis H. Bunte, both of Prescott, Ariz., for defendants in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

Defendants in error, called plaintiffs, recovered verdict and judgment for damages to crops, trees, and vines of plaintiffs and their assignors, caused by smoke, fumes, and gases from the smelter of plaintiff in error, called defendant. To review the judgment this writ of error was brought.

In the first of seven counts in the complaint, plaintiffs sued for damages to their own crops, trees, and hedges, while in the other six counts they sued as assignees for damages done to the crops of other persons. General demurrer to the complaint was overruled, and defendant answered generally, denying the allegations of the complaint.

For the purposes of trial the action was consolidated with another (No. 4746, 14 F. 2d 304), brought by these same plaintiffs against the United Verde Extension Mining Company. At the close of the evidence introduced by plaintiffs the court denied defendant's motion for a directed verdict. Defendant introduced no evidence. The jury found in favor of the plaintiffs on all counts, except the seventh.

The complaint alleged that during 1922 and 1923 plaintiffs farmed certain properties situate about 4½ miles from defendant's smelter in Arizona; that while the crops were growing, and particularly in June, July, and August of 1922 and 1923, defendant, in the operation of its smelter, daily discharged in the air great quantities of poisonous gases, smoke, fumes, and flue dust, containing quantities of sulphur and other dangerous and poisonous materials, the exact contents of which were unknown to plaintiffs, which were carried by the winds over and upon the premises described, and upon plaintiffs' growing crops and fruit and ornamental trees, and seared, burned, injured, and destroyed the same. The last six counts are similar to the first, except that the causes of action stated therein are alleged to have accrued to other landowners in respect to other lands, and other crops and trees and vines, and are alleged to have been assigned to plaintiffs.

The principal questions argued are: (1) Whether causes of action were stated in the complaint; (2) whether plaintiffs could exercise six peremptory challenges and defendant but three in the selection of the jury; (3) whether verdict should have been directed in favor of defendant; (4) whether correct rules as to damages were given; (5) whether certain instructions given were correct and whether certain requests were properly refused; (6) whether certain comments made by the judge in his charge were prejudicial to the rights of defendant.

As to the first point, no one at this day will contend that a smelter is in itself a nuisance, or that the business of smelting ore is unlawful. But the general acceptance of those propositions is with the understanding that the right to maintain and operate a smelter is subordinate to the general rule contained in the maxim "Sic utere tuo ut alienum non lædas," a maxim which the Supreme Court has said is as fully recognized in the jurisprudence of Arizona as it is elsewhere. Arizona Copper Co. v. Gillespie, 230 U. S. 46, 33 S. Ct. 1004, 57 L. Ed. 1384; Camfield v. United States, 167 U. S. 518, 17 S. Ct. 864, 42 L. Ed. 260. The business itself may not be the determining factor, but may become so as to persons who are specially injured by its being carried on. For example, one may erect a cement mill in the immediate vicinity of an orange grove, yet if, in the operation of the mill, cement dust escapes and is blown in quantities upon adjacent property, and seriously injures the trees thereon, thereby impairing the value of the lands, he cannot avoid liability for damages done. California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App. 522, 195 P. 694; Bigbee, etc., Co. v. Scott, 3 Ala. App. 333, 56 So. 834. Thus, irrespective of whether the smelter was well or negligently operated, a cause of action was pleaded and the demurrer was properly overruled Pollock on Torts, p. 417; Soltau v. De Held, 2 Sim. (N. S.) 133.

The next inquiry is whether plaintiffs, as assignees, could recover under the counts alleging damages to the properties of others. We think they could. In Deatsch v. Fairfield (Ariz.) 233 P. 887, 38 A. L. R. 651, the court said that the question of survivorship of a chose in action is the test of assignability. Under paragraph 398, Arizona Civil Code, suits for recovery of damages or for any injury or damage done to lands may be instituted by executors, administrators, or guardians in like manner as they could have been by their testators or intestates. Paragraph 968, p. 447, Arizona Civil Code, provides that executors or administrators may maintain action for trespass committed on real estate of the decedent in his lifetime. Our opinion is that by the statutes of the state a cause of action which arises from a tort to real property or injuries to a decedent's estate, by which the value of the estate is lessened, survives, and that the general rule that such cause of action is capable of assignment obtains. 2 R. C. L. 613; Ingersoll v. Courley, 72 Wash. 462, 130 P. 743; Bultman v. Atlantic Coast R. Co., 103 S. C. 512, 88 S. E. 279.

Was it error to permit plaintiffs, in selecting a jury, to exercise six peremptory challenges, and to refuse to permit defendant to exercise more than three? Section 287 of the Judicial Code (Comp. St. § 1264) provides that each party shall be entitled to three peremptory challenges, and in all cases where there are several defendants or several plaintiffs the parties on each side shall be deemed a single party for the purposes of all challenges under the section. It is to be remembered that this and another case brought by the same plaintiffs were tried together, and that separate verdicts were required. Under such a state of facts, it has been held that plaintiffs and defendants are each entitled to the same number of challenges as they would have been, had the cases been tried separately. Betts v. United States, 132 F. 228, 65 C. C. A. 452; Conn. Mutual Life Ins. Co. v. Hillmon, 107 F. 834, 46 C. C. A. 668; Butler v. Evening Post Pub. Co., 148 F. 821, 78 C. C. A. 511; Davis v. Jessup (C. C. A.) 2 F.(2d) 433.

Counsel argue that the decisions cited misconceive the view of the Court in Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706, and that in Conn. Mutual Life Ins. Co. v. Hillmon, 188 U. S. 208, 23 S. Ct. 294, 47 L. Ed. 446, the Supreme Court construed its former decision as holding no more than that the right of a single party to three peremptory challenges is neither diminished nor enlarged by consolidation of two or more actions. We do not understand the opinion as sustaining defendant's position. The concession made in the discussion by Justice Brown, following defendant's argument in that case, was not by way of opinion in conflict with the holding of the Circuit Court of Appeals, but merely by way of assumption for the purposes of argument. In Betts v. United States, supra, the Circuit Court of Appeals regarded the decision in Mutual Life Insurance Co. v. Hillmon, supra, as directly holding that no defendant could be deprived of the right to challenge jurors as a result of an order that causes should be tried together. The latest decision to which we have been referred is Davis v. Jessup, supra, where the Circuit Court of Appeals for the Sixth Circuit has taken the same view and puts what we think is the right construction upon the two decisions in Mutual Life Ins. Co. v. Hillmon, supra.

Defendant urges that verdict should have been directed in its favor on the ground that the evidence failed to show negligence in the operation of the smelter, or that if there was any damage it was caused in whole or in part by the smoke and fumes from the United Verde Extension Company smelter, and because it was not shown what portion of such damage was caused by smoke or fumes from defendant's smelter. The testimony is wholly convincing that the smoke and fumes from the two smelters intermingled, and went over and upon the lands of plaintiffs, and damaged their crops and trees. How could plaintiffs, farmers, be reasonably expected to say with anything like precision what the contents of the smoke were, or what proportion of damage was done by smoke from one smelter as distinguished from the other? They made out a very strong prima facie case when they proved that there were two smelters, the locations of which were about a mile and a half and four miles, respectively, from plaintiffs' lands; that defendant's smelter had two stacks, and the other smelter one; that the smoke smelled and tasted strongly of sulphur; that the smoke intermingled, as it came from the smelters and spread over the farms; that it often remained for hours over their lands; that after the smoke lifted the growing vegetation looked discolored and withered, and much of it never recovered.

The theory of the plaintiffs was, not that the two smelting companies acted in concert and were joint tort-feasors, but that the damage age was caused by each separately and that each was liable for whatever damage was done by its smelter. Of course, defendant United Verde Copper Company became liable only for such proportion of the total damage resulting from the commingled smoke sent out from the two smelters as was caused by its own smelter (U. S. Smelting Co. v. Sisam, 191 F. 293, 112 C. C. A. 37, 37 L. R. A. N. S. 976), and the court so charged the jury. The fact that the effects of their several acts were...