Opinion
No. 33852.
November 20, 1939.
1. WATERS AND WATERCOURSES.
A corporation which used, in building roads, large amounts of water from city water mains and from bayou, was bound to know that the bayou water was unfit for human consumption, and that greater pressure at pump end of the corporation's water line than at other end would result in forcing bayou water into the city water supply, and hence such corporation was liable on ground of negligence for illness caused by such pollution, which might have been avoided by installation of safety valve.
2. DAMAGES.
$3,000 to woman for gastroenteritis resulting in two weeks' confinement in bed, occcasional pains and nausea for fourteen months, and possible permanent injury, held not so excessive as to evince passion or prejudice.
APPEAL from the circuit court of Bolivar county; HON. WILLIAM A. ALCORN, Judge.
Sillers Roberts, of Rosedale, for appellant.
The burden rested upon appellee to prove her case by a clear preponderance of the evidence, and if the evidence fails in this respect leaving the case to speculation and conjecture, the case fails.
Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295.
As to proposition that appellant pumped water from Jones Bayou into the water mains of the City of Cleveland the evidence is not sufficient to prove this proposition.
We submit that the evidence does not prove that water from Jones Bayou was pumped into the city mains on the 18th or 19th of September, 1937.
As to proposition that the water was polluted and contained poisonous and deleterious substances, the best proof to establish this proposition is a chemical analysis of the water taken from the mains, which was not done, and the jury was left to decide this proposition from inference and circumstances of doubtful probative value.
While the testimony of appellee as to the quantity of water which she drank and when she drank it is uncertain and unsatisfactory to prove just what quantity of water she did drink, yet we take it that from the fact that she was taken suddenly ill at and about the time the outbreak occurred, and the further fact that she testified that the water in her home was unfit for human consumption, the jury was justified in believing that she did drink enough water to make her sick, but as to the extent of her illness therefrom we do not think the jury was warranted in finding.
While we think the evidence is sufficient to warrant the jury in finding that the appellee was made ill and suffered injuries as a result of drinking the water, yet we most strongly contend that the illness resulting from drinking the water was not so severe, nor was the duration thereof as long as that contended for by the appellee, nor did she suffer the injuries therefrom as complained of by her herein.
Courts in civil cases act upon reasonable probabilities. In trials under the common law, to prove a possibility only, or to leave the issue to surmise or conjecture, is never sufficient to sustain a verdict.
Columbus G.R.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Wheeler v. Laurel Bottling Works, 71 So. 743, 111 Miss. 442; McCain v. Wade, 180 So. 748, 181 Miss. 664; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295; Teche Lines v. Bounds, 179 So. 747, 182 Miss. 638.
The verdict of the jury and judgment of the court rendered thereon is grossly excessive and is not supported by the evidence, but evinces passion and prejudice on the part of the jury.
In considering whether verdicts are sufficiently sustained, courts should avoid substitution of conclusion of witness for that of jury by requiring the best reasonably attainable evidence of facts upon which jury is to arrive at its conclusion.
Citizens Bank v. Callicott et al., 178 Miss. 747, 174 So. 78; Harris v. Pounds (Miss.), 187 So. 891; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295.
On the further question of excessive verdict we direct the court's attention to some of the numerous cases, namely:
Jackson Coca Cola Bottling Co. v. Renna, 97 So. 674, 133 Miss. 386; R.J. Reynolds Tobacco Co. v. Loftin, 99 So. 13; F.W. Woolworth Co. v. Volking, 106 So. 3, 135 Miss. 410; Armour Co. v. McMillain, 155 So. 218, 217 Miss. 199.
Roberts Smith, W.B. Alexander, Jr., and W.D. Jones, all of Cleveland, for appellee.
We earnestly submit that appellee went much further with her proof than was actually necessary. The proof in this case is as conclusive as is humanly possible to make it. Appellee would not be required to trace the water through the pipe, which, of course, would be impossible, and she would not be required to show the very minute that the particular water she drank entered the city mains which would also be impossible, for the water was neither tagged nor labled, but all she would be required to show, although the proof in this case goes further, would be that all other possible sources of pollution had been eliminated and that the only source from which the contamination could have come was the pipe line of appellant. Appellee has overwhelmingly proved all the elements necessary to establish her case. We respectfully submit that the verdict of the jury was imminently correct and should be upheld by this court.
While most of the cases found in the books involving water pollution are cases in which a citizen or private corporation which supplied water was sued on an implied warranty, such cases are not, on that account, we think, altogether without value to the court in its consideration of this case.
Hamilton v. Madison Water Company, 116 Me. 157, 100 A. 659; Conradine Ritterbusch et al., Respts., v. City of Pittsburg, Appt., 269 P. 930.
We submit that the damages sustained by appellee as shown by the record, by unimpeached and unimpeachable testimony, abundantly warranted larger damages than she has been awarded; and that there is no case to be found in which this court has required a remittitur below $3000, on the proof of suffering, protracted illness and permanent injury, which appellee's testimony and the entire record disclose.
26 C.J. 789; Chapman v. Powers, 116 So. 609, 150 Miss. 687; J.C. Penney Co. v. Evans, 160 So. 779, 172 Miss. 900; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Bufkin et al. v. Grisham, 128 So. 563, 157 Miss. 746; Y. M.V.R. Co. v. Grant, 38 So. 502, 86 Miss. 565; City of Greenville v. Middleton, 86 So. 804, 124 Miss. 310; Y. M.V.R. Co. v. Martin, 29 So. 829; Coca Cola Bottling Works v. Lyons, 111 So. 305, 145 Miss. 876; Coca Cola Bottling Works of Greenwood v. Simpson, 130 So. 479, 158 Miss. 390.
The ground of appellant's liability is negligence, not that it warranted the fitness of the city water for human consumption; no such obligation rested upon it. Appellant argues that it was entitled to a directed verdict because the evidence fell short of tending to establish negligence in a substantial way; that the case rested "upon inference, upon inference, and the ultimate inference is only more or less a strong possibility". The question is whether appellant negligently polluted the water in the water main in the area surrounding the city fire hydrant to which appellant's water line was attached. We are of opinion that question should be answered in the affirmative, and we reach that conclusion upon the following considerations: The Bayou water was so polluted as to be unfit for human consumption; it was dangerous to the health of those drinking it. Its contamination was sufficient to cause the character of ailments suffered by appellee and others in the affected area. Appellant is bound to have known, as everyone did, that the Bayou was a sewage receptacle to a large extent of the City of Cleveland and the town of Boyle, as well as along the way between the two places. Appellant must have known that greater pressure at the pump end of its water line than at the other end would result in forcing the Bayou water into Cleveland's water supply. The fact, which was undisputed, that the outbreak of sickness was confined alone to the area around the Cleveland connection of the pipe line and the balance of the inhabitants of the city were unaffected, is strong evidence that the pollution was from the Bayou water and not from any other source. The evidence showed that by the installation of a safety valve, which would have cost little, the possibility of the city water being contaminated by the Bayou water would have been avoided. Among other cases relied on by appellant is Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295, 297, 95 A.L.R. 157. The Court did not hold in that case that negligence could not be established by inference upon inference, but held to the contrary, using this language: "While it is true that the rule is an established one that a presumption may not be based upon another presumption, Hinman v. Sabin, 147 Miss. 509, 514, 112 So. 871, and that following this many courts have said, and most of the texts announce, that an inference essential to establish a cause of action may not be based upon another inference, we think the rule holds good only as to legal presumptions, strictly speaking; but that, as to inferences deduced from the facts, it is not the unqualified rule that an inference may not be based upon another inference. Numerous cases of circumstantial evidence found in our books, and many trials in the everyday experience of our bench and bar, disclose that inference upon inference is availed of and is enforced. 1 Wigmore, Ev. (2 Ed.), pp. 258-260; 1 Jones, Com. Ev. (2 Ed.), pp. 625-637."
With reference to the argument that the verdict was so excessive as to evince passion or prejudice on the part of the jury, we say this: Although the verdict seems large, we cannot say with absolute confidence that it is so large as to evince passion or prejudice on the part of the jury. Taking the testimony of appellee and her physician to be true, as the jury doubtless did, and was justified in so doing, prior to this attack she was in good health; for two weeks afterwards she was in bed most of the time seriously sick and up to the trial — about fourteen months after the attack — she still at times suffered from abdominal pains and nausea. The evidence tended to show that her condition might be permanent.
Affirmed.