Watts v. Pama Mfg. Co., 167

• Decision Date: 11 April 1962
• Docket Number: No. 167,167
• Citation: 256 N.C. 611,124 S.E.2d 809
• Parties: Harold P. WATTS and wife, Janice B. Watts, v. PAMA MANUFACTURING COMPANY.
• Court: North Carolina Supreme Court

Page 809

124 S.E.2d 809

256 N.C. 611

Harold P. WATTS and wife, Janice B. Watts, v. PAMA MANUFACTURING COMPANY.

No. 167

Supreme Court of North Carolina.

April 11, 1962

Mullen, Holland & Cooke and Robert E. Gaines, Gastonia, for plaintiffs.

Hollowell & Stott, Gastonia, for defendant.

MOORE, Justice.

Defendant first assigns as error the denial of its motion for nonsuit. The gist of its argument on this assignment is that there is no evidence that defendant 'operated in such a way to occasion more noise and vibration than necessarily results from operation of other plants of like nature and character. ' It calls attention to the undisputed testimony of the male plaintiff and his father, on cross-examination, that they had worked at a knitting mill, the Beaunit Mill in Lowell, Gaston County, and that the machines used and the manner of operating were similar to those of defendant.

Defendant cites Mewborn v. Rudisill Mine, Inc., 211 N.C. 544, 191 S.E. 28, as authority for its position. In that case plaintiffs sued, on the theory of private nuisance per accidens, to recover damages for injuries to persons and property resulting from noises, vibrations and glaring lights occasioned by the operation of a gold mine. Plaintiffs also asked for injunction to abate the nuisance. While it does not appear in the opinion, the record on file in this Court shows that plaintiffs alleged, among other things, that defendant applied and exploded unnecessarily large loads of dynamite, used an unnecessarily large bell, and there were noises, vibrations and lights not necessary to the operation of the mine. The record also shows that defendant averred that the ore was being extracted 'under the most approved methods,' and offered evidence tending to show its operation met the safety requirements of the Department of Labor, was modern and in accordance with approved methods, was the same as in other comparable gold mines and in keeping with good mining practice. The jury found that the operation did not constitute a nuisance, and there was judgment for defendant. The trial judge charged the jury, in part, that 'the operation of a mine must occasion more noise and vibration than necessarily results from the operation of other plants of like kind and character, operated as a reasonably prudent man or miner would operate them under like circumstances, in order to constitute such operation a nuisance. ' The judgment was affirmed on appeal. The foregoing portion of the charge was not specifically in question and was not discussed in the opinion. The question raised and discussed was whether the judge should have charged, and did sufficiently charge, that the location of the mine and its operation at night were matters to be considered by the jury on the nuisance issue; and it was held that the judge 'did, in effect, so instruct the jury. ' The charge covered many principles not stated in the above excerpt, and other tests were also imposed for the guidance of the jury. The opinion states generally that, considering the charge as a whole, there was no error in the instructions on the nuisance issue, but there is no indication that this Court intended to adopt the portion of the charge quoted above as a general criterion for determining whether or not the operation of a lawful enterprise is a nuisance per accidens. In the Mewborn case it is obvious that the action, in a substantial degree, involved an alleged nuisance based on negligent operation. The excerpt from the charge quoted above, and relied on by defendant, might, under apposite pleadings and in limited circumstances, be a determinative test where the alleged nuisance involves negligent operation. But the instant action is not based on negligent operation of the mill. Plaintiffs allege intentional conduct amounting to a nuisance per accidens by reason of unreasonable operation. The language relied on by defendant is not a decisive test in the case at bar.

Negligence and nuisance are distinct fields of tort liability. The same act or omission may constitute negligence and also may give rise to a private nuisance per accidens, and thus the two torts may coexist and be practically inseparable. But a private nuisance per accidens may be created or maintained without negligence. Indeed, most private nuisances per accidens are created or maintained, and are redressed by the courts without allegation or proof of negligence. A person is subject to liability for an intentional non-trespassory invasion of an interest in the use and enjoyment of land when his conduct is unreasonable under the circumstances of the particular case; a person is subject to liability for an unintentional invasion when his conduct is negligent, reckless or ultrahazardous. An invasion of another's interest in the use and enjoyment of land is intentional in the law of private nuisance when the person, whose conduct is in question as a basis of liability, acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury. Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682; Andrews v. Andrews, 242 N.C. 382, 88 S.E.2d 88.

In negligence actions the common usage in a business, as to installations, equipment, and manner of operation, is a proper matter for consideration in determining whether or not reasonable care has been exercised in a particular case, but it does not furnish a test which is conclusive or controlling, and negligence may exist notwithstanding the means and methods adopted are in accordance with those customary in the business. 65 C.J.S. Negligence § 16, p. 404; Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A.L.R. 1090. Negligence is not a factor in the instant case according to the pleadings and evidence; plaintiffs allege intentional conduct amounting to private nuisance per accidens. Whether the use of property to carry on a lawful business, creating noise and causing vibrations, amounts to a nuisance depends upon the facts and circumstances of each particular case. Clinic & Hospital v. McConnell, Mo.App., 236 S.W.2d 354, 23 A.L.R.2D 1278 (1951). The question is whether or not the use is unreasonable. 'Negligence, wrong business methods, improper appliances, and the like may bear upon, but do not control, the question of reasonable use. ' McCarty v. Natural Carbonic Gas Co., 189 N.Y. 40, 81 N.E. 549, 13 L.R.A.,N.S. 465 (1907).

'The law of private nuisance rests on the concept embodied in the ancient legal maxim Sic utere tuo ut alienum non laedas, meaning, in essence, that every person should so use his own property as not to injure that of another. ' Morgan v. High Penn Oil Co., supra.

The operation of a lawful enterprise is not a private nuisance per se, i. e., as a matter of law. State v. Brown, 250 N.C. 54, 108 S.E.2d 74; Causby v. High Penn Oil Co., 244 N.C. 235, 93 S.E.2d 79; Raleigh, City of, v. Edwards, 235 N.C. 671, 71 S.E.2d 396; Pake v. Morris, 230 N.C. 424, 53 S.E.2d 300. And the fact that a lawful enterprise produces noise and causes vibrations does not render it a private nuisance per se. But noise and vibrations emanating from the operation of a lawful enterprise may constitute it a private nuisance per accidens, i. e., in fact. 39 Am.Jur., Nuisances, §§ . 48 and 52, pp. 333 and 335; Freidman v. Keil, 113 N.J.Eq. 37, 166 A. 194, 86 A.L.R. 995 (1933); Cunningham v. Wilmington Ice Mfg. Co., 2 W.W.Harr. 229, 121 A. 654 (1923); Meyer v. Kemper Ice Co., 180 La. 1037, 158 So. 378 (1935).

Intentional private nuisances per accidens are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained or operated. Morgan v. High Penn Oil Co., supra. It is the unreasonable operation and maintenance that produces the nuisance. King v. Ward, 207 N.C. 782, 178 S.E. 577. And for liability to exist there must be a substantial non-trespassory invasion of another's interest in the private use and enjoyment of property. Morgan v. High...