Opinion
No. 36392.
March 24, 1947.
1. NUISANCE.
In action by several complainants who resided near defendant's hoe works, to recover for damages caused by blowing of sawdust into complainants' homes, award of any damages to one complainant who was not present at the hearing and adduced no proof and was not mentioned by any of the other complainants was error.
2. COSTS.
Where decree was affirmed as to three complainants but reversed as to one of the complainants, costs were apportioned three fourths to defendant and one fourth to the complainant as to whom the decree was reversed on appeal.
APPEAL from the chancery court of Jones county. HON. GEO. B. NEVILLE, Chancellor.
Welch, Cooper Welch, of Laurel, for appellant.
There is no proof in the record that complainant, O.A. Wilson, sustained any damage whatsoever.
The proof of alleged damage to the remaining complainants is wholly inadequate to support the decree of the lower court.
King v. Vicksburg R. . Light Co., 88 Miss. 456, 42 So. 204; Federal Land Bank of New Orleans v. Mississippi Power Light Co., 157 Miss. 737, 128 So. 98; Gulf S.I.R. Co. v. Beard, 129 Miss. 827, 93 So. 357, 358; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295, 298; Soukoup v. Republic Steel Corporation (Ohio), 66 N.E.2d 234; Sedgwick, Damages (9 Ed.), Secs. 104, 932.
The court was in error in finding that the accumulation of sawdust created a nuisance per se.
Green et al. v. Lake, 54 Miss. 540; Reber v. Illinois Cent. R. Co. et al., 161 Miss. 885, 138 So. 574; American Sand Gravel Co. v. Rushing, 183 Miss. 496, 184 So. 60; Smith v. Fairchild, 193 Miss. 536, 10 So.2d 172; McCutchen v. Blanton et al., 59 Miss. 116; Redmond v. State ex rel. Attorney General, 152 Miss. 54, 118 So. 360, 367; Bartel et al. v. Ridgefield Lumber Co., 131 Wn. 183, 229 P. 306, 23 A.L.R. 683, 689; 43 C.J.S., Injunctions, Sec. 22.
Under the testimony, the lower court was not justified in awarding damages as no nuisance in fact was established.
S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Teague v. Brown et al., 199 Miss. 262, 24 So.2d 726, 729; Gillis et al. v. Smith et al., 114 Miss. 665, 75 So. 451, 456.
The equities of the case are predominantly with the defendant and the decree rendered in this cause is unconscionable.
Eller v. Koehler, 68 Ohio St. 51, 67 N.E. 89, 91; Soukoup v. Republic Steel Corporation, supra; Restatement of the Law of Torts, Ch. 40, Secs. 822 et seq.
A.S. Scott, of Laurel, for appellee.
No owner of property may set in motion agencies which physically invade the home of another without liability for the damage done.
King v. Vicksburg R. Light Co., 88 Miss. 456, 42 So. 204; Buckeye Cotton Oil Co. v. Ragland, 11 F.2d 231.
When the facts constituting complainants' equity are set out in the bill and admitted in the answer, and the latter sets up new matter in avoidance, the burden of proving the facts set up is on the defendant.
Miller v. Lamar, 43 Miss. 383; Austin Clothing Co. v. Posey, 105 Miss. 720, 64 So. 5.
In determining damage to property where no market or fixed value has been proven, the jury may consider facts as to injury and estimate damages based upon experience.
Westerfield Meeks v. Catlett, 153 Miss. 228, 120 So. 458; Bell v. Gulf C.R. Co., 76 Miss. 71, 23 So. 268.
In a nuisance per se case the chancellor was well within his rights to assess such damages as were just under the testimony as found to be true.
Williams et al. v. Montgomery, 184 Miss. 547, 186 So. 302.
With reference to the decree against the defendant and in favor of appellee A.O. Wilson, we submit that even though the appellant had duly moved for peremptory judgment as against Wilson (which he absolutely failed to do), yet judgment would not be reversed for the refusal of the court to grant a non-suit or dismiss the complaint, when complainant rested his case, if afterwards during the trial the necessary evidence was supplied by either party.
Maclin v. Bloom, 54 Miss. 365.
Every breach of duty or violation of right entitles the party wronged to damages, and if none other be shown, nominal damages should be allowed.
Keirn v. Warfield, 60 Miss. 799.
Uncertainty as to the amount of damages is not an obstacle in the way of their allowance. Uncertainty as to the cause from which they proceed is what has occasioned trouble, and only when it cannot be ascertained with reasonable certainty that they have sprung from the breach alleged are they to be rejected as too remote or conjectural and speculative.
Crichfield v. Julia, 147 F. 65, 77 C.C.A. 297, cert. den. 203 U.S. 593; Rule v. McGreagor, 117 Iowa 419, 90 N.W. 811; Taylor v. Bradley, 4 App. Dec. (N.Y.) 363, 366; Hurlbut v. McKone, 55 Conn. 31, 3 Am. St. Rep. 17, 10 A. 164; Citizens Planning Mill Co. v. Tunstall (Tex.), 160 S.W. 424; White v. Halsey Lumber Co,., 96 S.C. 420, 81 S.E. 11.
The chancery court has full jurisdiction as to equity.
See Stigall et al. v. Sharkey County, 197 Miss. 307, 20 So.2d 664; Yazoo M.V.R. Co. v. McConnell, 127 Miss. 581, 90 So. 321.
Bill was filed by appellees to enjoin maintenance of a nuisance by appellant, and for damages.
Appellant operates the Laurel Hoe Works and appellees all reside across the street from the plant. Appellant had allowed to accumulate a large pile of sawdust near the street and particles therefrom had been constantly deposited by action of the wind over and into the homes of the appellees. Protest had been repeatedly made and some protective measures had been undertaken by appellant.
Upon the hearing, the prayer for injunction was abandoned since by the removal of the pile this issue had become moot. The chancellor was justified in finding substantial damages to the complainants who enumerated the several elements thereof.
The action as regards its tort phase is unique in that five complainants were allowed to proceed jointly in a single action for several damages. No point is made thereon, and the fixing of separate and similar damages to each suggests no impropriety.
One of the complainants, Wilson, whose home was a part of the neighborhood group was not present at the hearing, adduced no proof and was not mentioned by any of the other complainants, each of whom established his own case.
We find no warrant for award of a definite amount of damages, or for any damages, to this complainant. Recovery must be had upon complaint and proof. Had Wilson been the sole plaintiff in a tort action, it would hardly be supposed that he could recover damages upon proof only that some of his neighbors had suffered damage. In fact, two witnesses for the defendant below testified that although they reside in the same neighborhood, they had sustained no damage nor inconvenience. Wilson's mere registration as a local resident was not a due bill for damages. To the argument that his rights were equal to those of his neighbors, is the answer that his duty was likewise equal. One complainant may not, by his suit and verdict, legislate a prevailing scale to which another may ipso facto demand compliance.
Whether the complainants by their residence voluntarily exposed themselves to a pre-existing nuisance would involve an inquiry whether appellant's operations constituted a nuisance per se. The action here involves a nuisance per accidens. That it was later abated shows that it could earlier have been.
The decree will be affirmed as to the appellees Kirkland, Rogers, and Brown, but reversed and vacated as to the appellee Wilson. Costs will be apportioned one-fourth to O.A. Wilson and three-fourths for appellant.
So ordered.