Vautier v. Atlantic Refining Co.

• Decision Date: 20 March 1911
• Docket Number: 339
• Citation: 231 Pa. 8,79 A. 814
• Parties: Vautier v. Atlantic Refining Company, Appellant
• Court: Pennsylvania Supreme Court

79 A. 814

231 Pa. 8

Vautier v. Atlantic Refining Company, Appellant

No. 339

Supreme Court of Pennsylvania

March 20, 1911

Argued January 13, 1911

Appeal, No. 339, Jan. T., 1910, by defendant, from judgment of C.P. No. 2, Phila. Co., Dec. T., 1906, No. 983, on verdict for plaintiffs in case of Charles Vautier et al., late trading as Vautier Brothers, v. Atlantic Refining Company. Reversed.

Trespass to recover damages for injuries to a crop of vegetables. Before BARRATT, J.

At the trial a witness for defendant was asked this question:

"Q. Were the Vautiers the only people you ever received complaints from in the spring and fall about the smoke from that stack?"

Objected to by counsel for defendant. Objection overruled; exception to defendant. [6]

"Q. Were the Vautiers the only people you got complaints from in the spring at all? A. No. Q. As a matter of fact, Mr. Houpt didn't your company have agreements, annual agreements with certain people there in the Neck for reimbursement for damages done them by your smoke? A. Yes."

Mr. Brown: I object to that and ask that the answer be stricken out.

The Court: "Q. Do you mean as to vegetables? A. Why, there were certain people."

Mr. Brown: I object to this, your honor.

The Court: I want to have sufficient evidence upon which to base a ruling on your objection, Mr. Brown.

Mr. Brown: Then I don't object, your honor.

The Court: I will overrule the objection and give you the exception, Mr. Brown. [7]

"Now, Mr. Houpt, were or were not the appliances used by the Atlantic Refining Company the most effective and approved known appliances for the purposes for which they were intended?

Objected to by counsel for plaintiff. Objection sustained; exception to defendant. [8]

Mr. Brown: I offer to prove by this witness that yesterday he collected salad, or spinach, from a farm right in this neighborhood, that was lousy, just as the witnesses have testified to, and it shows the same appearance as the plaintiffs contend resulted from the fumes of this stack.

Mr. Stevenson: I object to it. This was done yesterday.

Mr. Brown: I want to show that the very condition of the spinach to-day is the same and that it has the same appearance that Mr. Vautier's had, and this stack has been out of work now for two or three years.

Mr. Stevenson: I still object to it.

Objection sustained; exception to defendant. [9]

The court charged in part as follows:

[Both the plaintiffs and the defendant were engaged in legitimate enterprises, the one as farmers and other as refiners of oil, and each had the absolute right to the enjoyment of their property, though neither was permitted under the law to so use their property as to destroy the products of the other.]

Defendant presented these points:

2. If you find that defendant used the most effective and approved known appliances to control the emission of soot from the chimney of the sweetening plant, then no lack of care could be imputed to it, and if nevertheless some soot did escape and settle on plaintiffs' crops, the injury, if any, would be damnum absque injuria and your verdict should be for the defendant. Answer: Refused. [3]

3. If you find that the plaintiffs suffered a loss on a certain character of truck raised by them in 1903 or other periods before the time for which damages are herein claimed, that the methods used by defendant which caused the loss were still being continued and with a knowledge of probable loss, they still endeavored to raise that kind of truck under those conditions, the true measure of damage is not the value of their crops destroyed, but the loss they would have sustained, if any, by being compelled to raise other and less productive crops. Answer: Refused. [4]

Verdict and judgment for plaintiffs for $2,761.86. Defendant appealed.

Errors assigned were (3, 4-10) above instructions, quoting them; (6-9) rulings on evidence, quoting the bill of exceptions.

By reason of the errors set forth in the seventh and ninth assignments, the judgment is reversed, with a venire facias de novo.

Francis Shunk Brown, with him Alex. Simpson, Jr., for appellant. -- There was no evidence of negligence: Stewart v. DeNoon, 220 Pa. 154.

It was error to admit evidence of annual agreements between appellant and other truckers for compensation for injuries which they alleged were caused by appellant's works; and also in admitting evidence of former complaints made by appellees and compromises between appellant and appellees: Featherman's Administration v. Miller, 45 Pa. 96; Cummings v. Gann, 52 Pa. 484; B. & O.R.R. Co. v. Colvin, 118 Pa. 230; Aiken v. Penna. R.R. Co., 130 Pa. 380; Veit v. Brewing Co., 216 Pa. 29.

An attempt to settle a disputed claim has always been held irrelevant to prove that claim: Slocum v. Perkins, 3 S. & R. 295; Folwell v. Beaver, 13 S. & R. 311; Green v. Bauer, 15 Pa.Super. 372; Fisher v. Fidelity Mut. Life Assn., 188 Pa. 1.

The learned trial judge erroneously excluded evidence as to the use of the most approved appliances in appellant's plant: Harvey v. Coal Co., 201 Pa. 63.

The true measure of damages in this case is the difference between what appellee might reasonably have made by growing the vegetables susceptible to injury, and what he might have made by growing other crops: Foehr v. R.R. Co., 40 Pa.Super. 7.

The trial judge erred in excluding testimony as to present injuries to vegetation in this vicinity of the same nature which the appellees claimed affected their crops, though it is admitted that there are now no harmful emanations from appellant's works: Byers v. B. & O.R.R. Co., 222 Pa. 547.

Henry M. Stevenson, with him Maxwell Stevenson, for appellees. -- It is not necessary to prove negligence, even though alleged, where a nuisance is proven: Stokes v. R.R. Co., 214 Pa. 415; Campbell v. Bessemer Coke Co., 23 Pa.Super. 374; Rogers v. Traction Co., 182 Pa. 473; Hauck v. Pipe Line Co., 153 Pa. 366; Farver v. Car & Foundry Co., 24 Pa.Super. 579; Green v. Sun Co., 32 Pa.Super. 521.

The plaintiffs had the right to prove directly by others the fact that others were damaged by soot and smoke: Green v. Sun Co., 32 Pa.Super. 521; Penna. Lead Co.'s App., 96 Pa. 116.

The proof of an offer of compromise cannot be made, but the conversation may be testified to whenever it will show or prove some substantive fact or an acknowledgment of liability: Rabinowitz v. Silverman, 223 Pa. 139; Bascom v. Stove & Mfg. Co., 182 Pa. 427; Arthur v. James, 28 Pa. 236.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE POTTER:

This action was brought by plaintiffs to recover damages for injuries to their growing crops of vegetables, alleged to have been caused by noxious products, smoke and soot, emitted from the oil refinery of the defendant company. Upon the trial, evidence was offered on the part of the defendant, tending to show that the loss of the crops was not due to injuries caused by products from the smokestack of the refinery, but was owing to lack of proper care, and to the ravages of insects, and to smoke from locomotives passing upon a railroad track near by. The issue of fact thus raised, as to the cause of the injuries, was determined by the jury in favor of plaintiffs. From the judgment entered upon the verdict, defendant has appealed.

The first and second assignments of error are to the refusal of the court below to enter judgment in favor of the defendant, non obstante veredicto, and to the refusal of defendant's first point, asking for binding instructions in its favor. In support of these assignments, it is urged that there can be no recovery because there was no evidence of negligence on the part of the defendant company in the operation of its works. But in Robb v. Carnegie Bros. & Co., 145 Pa. 324, which is a leading case on the subject, we held that evidence of negligence is not necessary in order to establish a claim for damages in a suit of this kind. The defendants in that case had erected coke ovens on land adjoining plaintiff's farm. Plaintiff alleged "that the smoke and gas from these ovens passed over his farm injuring thereby his crops, his soil and the comfort of his home." In denying plaintiff's right to recover, defendant contended that the injuries resulted "from the pursuit of a lawful calling, in a lawful manner,...