Wenona Zinc Co. v. Dunham

Me. Justice Cartwright

delivered the opinion op the Court.

Appellee brought this suit against appellant to recover damages resulting to herself and her property from the location and operation of zinc works near her home, and she recovered §750.

Appellant complains that on the trial the injury to plaintiff’s property was treated as permanent, and she was allowed to prove the depreciation in the value of the property; that the court excluded proper evidence offered by defendant, and that the verdict is against the weight of the evidence.

In two counts of the declaration, damages of the kind now objected to, were charged. The damages proved, resulted from gases generated in the reduction of zinc ore which contains about forty per cent of sulphur. The evidence for defendant was, that it was necessary to burn out the sulphur, and create the gases which went up the chimney and passed off into the atmosphere. The injury was a natural and necessary attendant of the works, and so far as appears could not be avoided by any change in the operation of them. In Ottawa Gas Light and Coke Co. v. Graham, 28 Ill. 73, and Decatur Gas Light & Coke Co. v. Howell, 92 Ill. 19, it was held proper to recover, in one suit, for permanent damages by the depreciation in value of property on account of the location of gas works in the vicinity, and the damages suffered from such cause were similar to and not more permanent in character than in this case. But whatever the correct rule may be, appellant can not now object that all the damages were recovered in this action, and insist upon the claim that successive suits must be brought for accruing damage, because both parties tried the case upon the assumption that all the damages might be so recovered. Both offered evidence of the value of the property before the location of the works and at the commencement of the suit, and of the depreciation in value, and both asked instructions on that subject. No objection to evidence was made on that ground, and the parties having treated the injury as permanent and all damages as recoverable in this action, appellant can not now be permitted to change its ground, because dissatisfied with the result of trying the case on that basis. It is sought to bring under this head two objections made to questions, but the objections were plainly made for other reasons, and will not suffice to raise the point as to the entire damages being recovered.

One of these questions is said to be open to another objection—as calling for a conclusion. The witness had given an opinion as to the value of the premises before the location of the works and at the commencement of the suit, showing great depreciation, and was then asked what caused the depreciation. It was manifestly necessary and proper to connect the depreciation with the location and operation of the zinc works and the poisonous gases as the cause, and the method adopted was proper, and was approved in K. & S. R. R. Co. v. Horan, 131 Ill. 288.

Dr. W. II. Frazer was examined as a witness for defendant, and testified that he had practiced about zinc works in La Salle and Peru, but the court refused to allow him to answer a question whether the smoke and fumes from those works had any effect on the health of his patients. It is insisted that the court was wrong, but it is immaterial whether that is so or not, since the witness testified that he never knew a case of ill-health that was attributed to the fumes or smoke from zinc works, and nothing more could have been gained by an answer to the question. There was no ground for alleging error on that account. Bull v. Gris-wold, 19 Ill. 631.

Plaintiff owned about five acres, occupied as a home at the time of the erection of the zinc works, well set in fruit trees of various kinds and small fruit. In reducing the zinc ore large quantities of sulphurous acid gas and carbonic acid gas were generated and passed out of the chimney, and being heavier than the atmosphere, in ordinary conditions, sank upon the adjacent premises including the property of plaintiff. The evidence was that carbonic acid gas was a deadly poison, and that sulphurous acid gas was a highly irritant poison of foul and pungent odor destructive alike to all forms of animal and vegetable life, and the only question raised by the evidence was whether the proportion of these gases in the atmosphere would be great enough to make them effective. The evidence amply justified the jury in concluding that they were effective in this case in killing the trees, small fruits and vegetation of all kinds, making the cistern water unfit for use, and seriously affecting the health and comfort of plaintiff. Before the location of the works she was a healthy woman, doing all the work for a family of seven, and injurious consequences manifested themselves when the works were put in operation, and continued Avhile they were operated. When the wind changed so as to blow the gases away from her premises her condition improved, and she became Avorse again upon their return. The evidence sufficiently connected her ill-health with the gases as the cause. We think the verdict is in accordance Avith the evidence and the judgment will be affirmed.