W. B. Roddenbery Co., Inc. v. Carter, 192 F.2d 448 (5th Cir. 1951)

The suit was for damages¹  to land and cattle resulting from the discharge of waste and refuse from the pickle company's plant into Little Tired Creek, a stream flowing through plaintiff's land.

The claim was: that by arrangement between the two defendants, the pickle company and the city, refuse and waste from the pickle plant was dumped as sewage into the creek; that this not only polluted the stream causing cattle drinking from it to sicken and die, but polluted the land itself; and that as a result plaintiff suffered not only temporary damage, measured by injury to his cattle and the loss of rental or use value for the time of the pollution, but also permanent damages measured by loss in the market value of the land.

In response to interrogatories, defendant Pickle Company admitted that on or about July 8, 1947, it, on the instructions of the city, discontinued turning its waste and refuse into the general sewerage system, and commenced to turn it into Little Tired Creek.

Admitting, too, that the resulting pollution of the stream had in dry seasons caused fish to die and the cattle and hogs to refuse to drink its waters, it declared: that the pollution was not otherwise harmful; that the condition was only temporary; and that it was perfecting and would put into operation a plan which would end the pollution.

Tried to a jury, there was testimony: that some of the plaintiff's cattle had sickened and some had died as a result of the pollution complained of; that plaintiff had lost grass and trees on the low places of his land as the result of overflows; and that the rental or use value of the land had been diminished by the pollution. In addition there was some testimony that the contamination had hurt land values along the creek.

Over the objection of defendants that the testimony was not admissible, the court permitted plaintiff to offer in evidence a certified copy of a temporary injunction issued out of the Superior Court of Grady County in a suit brought against defendants by persons other than plaintiffs.² 

Further, over the defendants' objection that the nuisance complained of was temporary and abatable, and could not give rise to damages measured by the loss of market value of the land, the court admitted the issue of loss of market value to the jury.³ 

There was a verdict and judgment for plaintiff for $6,327.84, and defendants are here insisting: that the evidence established as matter of law that the nuisance was abatable, the damages temporary; and that the admission of the evidence objected to, and the giving of the charge complained of, constituted reversible error. In addition, though they did not object to it at the time, they here complain of plaintiff's argument to the jury.

Appellee agrees with the appellants that the nuisance was abatable and with the general principle advanced by appellants and supported by the authorities they cite that damages measured by the difference in the market value of the land before and after the beginning of the nuisance cannot be recovered where the nuisance complained of is abatable and the damages are temporary.

They insist, though, that the record contains evidence showing that, though the nuisance is abatable and recurrent, it did cause permanent damages to the land which reduced its market value as a whole, and the court, therefore, did not err in submitting to the jury as a measure of damages the difference in the market value of the land.

As to the jury argument, appellee relies firmly on the views of the district judge in denying the motion for new trial on this ground that there was no exception taken by defendants, that the argument was called for by the argument of defendants' counsel, and that if it was not fully justified, it was not of such prejudicial character as, unobjected to, to constitute reversible error.

While we agree with appellee that the argument was not reversible error, we cannot agree with him that this is so as to the other points urged.

In the first place, the record leaves in no doubt that the plaintiff offered the complained of evidence and asked the complained of charge not upon the theory appellee now advances, that, though the nuisance was temporary, there is evidence to support a finding that the damages to the land were permanent.

The evidence was offered in support of, and the charge was given to the jury on, the theory that the nuisance was continuing and not temporary, was permanent and not abatable.

The evidence did not tend to prove, nor does the record tend to show, that this was so. The temporary injunction issued in a suit not involving plaintiff or his land had no legitimate tendency to prove the issue on which it was tendered. It tended only to confuse the jury and to prejudice the defendants.

As to the charge, whose giving defendants had endeavored to prevent, there was no evidence to justify its giving. The evidence showed conclusively that the nuisance was temporary and not continuing, and there was no basis for the submission of the issue of permanent damages to the land.⁴ 

Because of these errors the judgment for the full amount recovered below ought not to stand.

We are of the further opinion, however, that the conduct of the defendants in turning the refuse and waste into the creek was clearly wrongful, that but for the errors complained of a judgment for plaintiff in a substantial sum would have been justified, and that if it can reasonably be avoided, the case ought not to be sent back for another trial.⁵ 

Under these circumstances, in the light of the substantial justice rule prevailing, as well in the federal as in the state courts, we think the judgment which this court should give is not one of reversal for trial anew, but one of conditional affirmance requiring the appellee to remit, and appellants to accept, a remittitur of all damages in excess of $5000 with interest on said remaining sum at 6 percent from May 27, 1950.

In the event such remittitur is made and accepted wihin fifteen days from this date, the judgment, as reduced by remittitur, will be affirmed with costs of appeal equally divided. If such remittitur is not so made and accepted, the judgment will be reversed and remanded for further and not inconsistent proceedings with costs of appeal taxed against appellee.