Vaughn v. Missouri Power & Light Co.
| Decision Date | 02 December 1935 |
| Docket Number | 18466 |
| Parties | James Vaughn and Susie Vaughn, Respondents, v. Missouri Power & Light Company, a Corporation, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Schuyler Circuit Court.
Affirmed.
Plaintiffs are husband and wife, and their action was brought in Adair County on December 12, 1933. From thence it was taken on change of venue to Schuyler County. March 26, 1935 plaintiffs filed a second amended petition, in two counts, to which, on May 6, 1935, the defendant demurred, but this was overruled by the court.
Whereupon, an answer to each count was filed. The first count of said second amended petition alleged that plaintiffs owned a house and lot in Kirksville, Adair County; that defendant was a corporation organized under the laws of Missouri; that on or about April 1, 1930, defendant "began spraying water into the air many feet above the ground and at a point about fifty feet to the northwest of plaintiffs' said land and dwelling house; that said water so sprayed and thrown into the air was on numerous and divers times carried by the wind into and upon the land and upon and against said dwelling house"; that the same produced a foggy condition of the atmosphere about the premises and said dwelling house; that the spray contained some unknown chemical, not stated because unknown, all of which caused the dwelling house to become discolored, its windows to be stained and spotted, the window frames to become warped and cracked, etc., and to give the house a dirty and unclean appearance, in consequence of which the premises and dwelling house were damaged, and the home rendered less enjoyable; that often since said water and spray were thrown on said house, defendant has continued to throw same on plaintiffs' land, house, street and side-walks in front of and on said premises.
That many times, and in freezing weather, thin sheets of ice formed on the porch, steps and sidewalks of said premises rendering them dangerous and unsafe; that many times they were unable to park their automobile in front of the house, nor could they hang their clothes on the line to dry, but had to hang them in sheltered places.
That "all of said acts of defendant were knowingly and wilfully done by defendant, and though plaintiffs frequently requested defendant to cease its conduct *** the defendant has wilfully and wrongfully ignored and disregarded plaintiffs' requests and has continued to throw and cast water and spray" on and against plaintiffs' land and house.
Wherefore, plaintiffs in said first count prayed judgment for $ 4000 actual, and $ 4000 punitive, damages.
In the second count, after saying that plaintiffs repleaded and restated as true all the allegations of the first count, as fully as if stated in said second count, plaintiff prayed that the court by its decree and judgment, "perpetually restrain and enjoin defendant from further throwing and spraying water into the air and upon, into and against the land and dwelling house of the plaintiffs" and for such other and further relief as may be proper.
After the demurrer had been overruled, as heretofore stated, the defendant filed an answer to each of the two counts of said second amended petition.
In its answer to the first count, after a general denial, defendant set up that it is organized as an electrical corporation for the manufacture and transmission of electric current for lights, heat and power, (presumably, of course, in Kirksville), and that any water sprayed into the air, was done as a part of the operation, and from some of the apparatus and machinery of a necessary electric steam power house owned and used by defendant in the manufacture and transmission of such current.
Further answering said count, defendant set up that plaintiffs' cause of action, if any cause of action ever arose upon the facts stated, accrued more than 5 years prior to the institution of this suit, and is barred by Section 862, R.S. Mo. 1929, pleaded in bar of plaintiffs' right to recover.
That there is another cause of action pending between the same parties for the same cause in this state.
Inasmuch as the second count was submitted to the court, after the jury had returned their verdict on the first count and by the court sustained, and no appeal from that taken, there is no need to say anything further about it.
The verdict on the first count assessed plaintiffs' actual damages from April 1, 1930, to December 12, 1933, at $ 500 and the punitive damages at $ 1500.
Judgment was rendered accordingly, and a motion for new trial being overruled, defendant appealed.
The ownership of the residence property in plaintiffs, as well as the corporate organization for the purpose heretofore mentioned, of defendant was agreed to by the parties.
The evidence in behalf of plaintiffs is:
That their residence is at 706 N. Elson Street in Kirksville. They have owned and resided in said property since August, 1912. It is a two-story, eight-room house with a porch on the west and south and a back porch on the east. The house faces west and is, of course, on the east side of the street and about 20 feet therefrom. A brick walk runs, about 12 or 15 feet, from the sidewalk to the house, the sidewalk along the house is of concrete, and so is the paved portion of the street. There is one house on the east side of the street south of plaintiffs' residence, and one house on the west side of the street. North of this last dwelling is a "spray pond", and ice house, and then the electric plant in which is the engine used in the manufacture of electricity. The street is 75 feet wide. The "spray pond" was put in about 1916; at that time the sprays were 30 or 40 feet west of the west sidewalk. In April, 1930, the spray pond was enlarged by being increased on the east to within about 8 feet of the sidewalk and was made twice as big, and thus it was brought closer to plaintiffs' house. The north side of plaintiffs' house is 45 feet south of the south line of the spray pond so that said is northwest of plaintiffs' residence.
The spray pond is of concrete, 80 feet wide east and west, and 90 feet long north and south, after it was increased in April 1930. It is about 4 feet deep at the south end and 3 feet deep at the north end. About 18 inches from the top of the tank are a series of (perhaps 4) lines of 6- or...
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