Lahman v. Rocky Mountain Phosphate Co.

MB. JUSTICE JOHN C. HABBISON

(dissenting) :

I find it necessary to disagree with the holding of the majority. In reading the summation of facts as set forth in the majority opinion, it is difficult to understand why a legal action was instituted by plaintiffs. The facts as I read them are:

Plaintiff Edward C. Lahman had lived on the property, some 400 plus acres, most of his 70 years. He married plaintiff Margaret Lahman in 1946, and after remodeling the home on the property they have lived there since 1947. Originally the ranch was a dairy operation. In 1954, plaintiffs developed a trailer court operation to supplement their income. While the two uses of the property did not make them wealthy, it did provide a living which kept them busy and able to live as they desired. This way of life was rudely interrupted in 1962, when they had a new neighbor move within 1600 feet of their home; that neighbor was defendant Bocky Mountain Phosphate Company, which manufactures an animal feed supplement from phosphate rock.

The background of Bocky Mountain Phosphate Company is of interest because of what plaintiffs allege happened to them after it began operating in the Garrison area. This Court began hearing about defendant early in the 1960’s when it opened operations in Butte, Montana. Due to the same complaints we have here, defendant was literally run out of Butte. In place of picking a plant site in an area where the wind would disperse air pollutants, defendant chose instead to locate its plant in what is described as a “rolling valley”, subject to inversion situations. The plant was constructed during the years 1962-1963, and from the time it began operation it has been in legal difficulties in the district courts of this state and in this Court. Dutton, Mollenberg v. Rocky Mtn. Phosphates, 151 Mont. 54, 438 P.2d 674; Mollenberg v. Rocky Mountain Phos. Co., 152 Mont. 352, 450 P.2d 672. See also Charles R. Lee v. Rocky Mt. Phosphate Co., Case No. 10595, filed in this Court’s Clerk’s office on May 9, 1963.

In addition to the state legal actions, we note that the first federal hearing — the Powell County Air Pollution Abatement Conference HEW — Public Health Service National Center for Air Pollution Control — was held in July 1967, because of the operations of defendant.

In the four year period from September 1963, when the plant began operation, to July 1967, it poured into the Garrison area some two tons of fluorides. Between September 1963 and March 19, 1964, school operations in the area were interrupted some 35 times. The physical complaints registered by human inhabitants were “a stinging sensation on face, coughing, burning eyes, burning noses and such as that. ’ ’ Its effect on animal and plant life took longer to detect.

In March 1965, defendant improved the situation somewhat by reducing both sulphur dioxide and fluoride emissions. In late 1968, a Teller scrubber was finally installed. In 1967, prior to the installation of the scrubber, Montana’s Ambient Air Quality Standards were established. Following the establishment of such standards, the measurement of fluoride concentrations in the Garrison area, and particularly on plaintiffs’ property, were monitored. A standard of .3 micrograms per square centimeter for 28 days was established as a maximum allowable limit, above which damage to grass, trees, and man occurs.

After that standard was established, the following tests, introduced as exhibits at trial, reveal the following concentrations of fluorides on plaintiffs’ property:

“Exhibit No. Date Concentration

Ex. 3 4/25/67 to 5/23/67 9.2mg/cm2/28 days (IN Screen)

4/24/67 to 5 '23/67 13/9mg/cm2/28 days (NO Screen)

Ex. 4 7/18/68 to 8/19/68 .18 ug/cm2/28 days (RMP not operating)

Ex. 5 8/19/68 to 8/18/68 .31 ug/cm2/28 days (Not operating)

Ex. 6 9/19/68 to 10/16/68 .31 ug/em2/28 days (Not operating)

Ex. 7 10/16/68 to 11/13/68 .18 ug/cm2/28 days (Not operating)

Ex. 8 11/13/68 to 12/12/68 1.36 ug/em2/28 days (operating from Nov. 19)

Ex. 9 12/12/68 to 1/10/69 .75 ug/cm2/28 days

Ex. 10 1/10/69 to 2/10/69 .41 ug/cm2/28 days

Ex. 11 2/10/69 to 3/10/69 .58 ug/cm2/28 days

Ex. 12 2/10/69 to 3/10/69 1.06 ug/cm2/28 days

Ex. 13 3/10/69 to 4/ 7/69 1.16 ug/em2/28 days

Ex. 14 4/ 7/69 to 5/ 5/69 .35 ug/em2/28 days

Ex. 15 5/ 5/69 to 6/ 2/69 .78 ug/cm2/28 days

Ex. 16 6/ 2/69 to 6/30/69 1.7 ug/cm2/28 days

Ex. 17 6/30/69 to 7/28/69 1.0 ug/cm2/28 days

Ex. 18 7/28/69 to 8/29/69 1.0 ug/cm2/28 days

Ex. 19 8/27/69 to 9/26/69 5.09 ug/cm2/28 days

Ex. 20 9/26/69 to 10/22/69 6.5 ug/cm2/28 days

Ex. 21 10/22/69 to 11/24/69 4.02 ug/cm2/28 days

Ex. 22 11/24/69 to 12/22/69 .87 ug/em2/28 days

Ex. 23 12/22/69 to 1/21/70 1.46 ug/em2/28 days

(operation stopped Jan. 19)

Ex. 24 1/21/70 to 2/24/70 .75 ug/cm2/28 days (Not Operating)

Ex. 25 2/24/70 to 3/25/70 .46 ug/cm2/28 days (Started March 4)

Ex. 26 3/25/70 to 4/29/70 .65 ug/cm2/28 days.”

From these exhibits it can be seen that even after the Teller scubber was installed, that month after month, year after year, plaintiffs were subjected to far beyond the maximum permissible level of fluoride emissions.

Plaintiffs, almost from the beginning of defendant’s plant operation, have been invaded by noxious odors of sulphur dioxide- and fluorides. They have suffered sore throats, sore eyes, burned lips, severe headaches and have had countless sleepless nights. Plaintiff Edward Latham developed a sinus condition and was bothered by a shortness of breath when he exerted himself. He went to his family physician, Dr. Benjamin of Deer Lodge, who had cared for him since 1949. Dr. Benjamin saw him in 1961, and then began seeing him fairly regularly after- October 1968. At that time Dr. Benjamin found he had a soreness of the mouth and tongue, complained of mucous, and had difficulty with his circulation. The doctor ordered X-rays taken. Both he and a radiologist read the X-rays which revealed “a questionable cardiac enlargement, and some lung scar.” A urine test for fluorides was. negative. After the October 1968 examination, Dr. Benjamin treated plaintiff regularly for complaints allegedly caused by the-, operation of defendant’s plant.

Dr. Benjamin also treated defendaril Margaret Lalnnan for-about 10 years, but it was not until in early 1970 that his examinations went to complaints caused by defendant’s plant. Dr-Benjamin tesitfied she complained of “a burning of the mouth,, face, eyes, nose and throat, she had headaches, a cough and a-feeling of a weight on her chest plus nausea. In addition she had. mental stress.” An X-ray revealed some scarring at the base ol; the left lung. A urine test showed a normal fluoride content.

Dr. Benjamin testified that beyond treating his local patients,. he had no experience or contact with treating patients suffering from excess inhalation of fluorides, nor had he made any particular study of it. However, at the trial the court and jury were given the benefit of hearing the testimony of a medical expert in the field of fluorides. The fact they gave little credence to his exhaustive testimony concerning plaintiffs ’ conditions is hard to believe, and I feel goes to the instructions given by the court on the statute of limitations. I feel that Instruction No. 18 was directly responsible. Too, it is my belief that Instruction No. 19 caused confusion within the jury in considering damages to plaintiffs’ real property. In the failure to give plaintiffs’ proposed Instruction No. 5, plaintiffs’ expert witness Beck’s testimony was severely limited.

In Dr. Samuel T. Hubbard of Spokane, Washington, plaintiffs presented to the jury an impeccable witness. His background, training, experience in the medical practice, and reputation as a consultant on air pollution are unquestioned. In the field of fluorides he particularly has practical experience, for his practice and laboratory serve to care for many patients working in the aluminum plant in Spokane. Counsel for plaintiffs sent them to Dr. Hubbard who performed clinical and pathological examinations on both. From these extensive examinations Dr. Hubbard testified that Edward Lahman was 75% medically disabled with a worsening prognosis, all directly or indirectly attributable to the operation of defendant’s plant. As to Margaret Lahman, he found that “her diffusion disturbance and lung problem were the result of the inhalation of the contaminated atmosphere.”

I recognize that the trial judge was liberal in allowing testimony concerning the entire time of defendant’s plant operation in the Garrison area, but find his instructions irreparably damaged plaintiffs’ case. The very fact that this jury took but one hour and ten minutes to arrive at its findings, with a case of this import and length of trial, bespeaks of a misunderstanding on the part of the jury as to its functions.

In Hardin v. Olympic Portland Cement Co., 89 Wash. 320, 154 P. 450, the Washington court said:

“No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor * * * without compensating such for the damages actually sustained. ’ ’

See also: Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266; Bartel v. Ridgefield Lumber Co., 131 Wash. 183, 229 P. 306.

I would reverse the findings and judgment and return the. cause to the district court for a new trial.