Green v. Sun Co.

Opinion by

Henderson, J.,

One of the plaintiff’s complaints was that the defendant wrongfully and injuriously constructed its works and negligently maintained and carried on its business, as a result of which the plaintiff’s buildings were damaged. No evidence of negligence was introduced, however, the plaintiff relying on testimony tending to establish the existence of a nuisance in the business which the defendant conducted. There is also an averment that the atmosphere was made unwholesome and injurious to the plaintiff’s tenants. The latter charge, however, was eliminated from the case by the court, together with all the evidence relating thereto, the issue being confined to- the inquiry whether the defendant maintained a nuisance and whether that nuisance was injurious to the buildings occupied by the plaintiff’s tenants. The plaintiff had been a resident of Marcus Hook for many years and was the owner of several houses which he rented.' The defendant, a New Jersey corporation, erected its works in the borough in 1902 and engaged in the business of refining Texas petroleum. The plaintiff’s allegation was that in the process of refining, offensive and noxious vapors were emitted which destroyed the paint upon the houses referred to, blackened the paper on their walls and corroded their metal roofs. Many witnesses were called who testified to the presence of offensive vapors in the atmosphere which they attributed to the defendant’s refinery. They were not observed before the refinery was put in operation and the observation of the witnesses led them to believe that they were given out by the defendant’s works. Some- of this evidence related to the effect of the vapors on the witnesses, themselves. Other parts of the testimony had reference to this effect on the plaintiff’s houses and other property in the vicinity. None of it, however, was admitted by the court for any other purpose than to show the origin of the objectionable fumes and the deleterious effects of them. Their existence might be proved both by the senses of the witnesses and their effect on the surrounding buildings and vegetation. Neither jury nor counsel could have understood that the evidence was admitted for the purpose of showing special damage to the witnesses or to other property than the plaintiff’s. Evidence that immediately after the works were put in operation sulphurous fumes were thrown out which were observed by many persons living in the vicinity, that a corrosive precipitate, injurious to metals, was deposited from these fumes and that other property in the same neighborhood was affected in the same way as the plaintiff’s, was directly in line with the complaint and tended to sustain the charge against the defendant that in carrying on its business it maintained a nuisance. The first six assignments of error except to the admission of evidence of this character. ' An examination; of the testimony in the light of the complaint makes it clear that the evidence was admissible for the purpose stated. Living in an atmosphere pervaded by injurious vapors the witnesses were properly called to prove the existence of them and. their pernicious effects ;■ this for the purpose of relating the plaintiff’s injury to the business carried on by the defendant. If, as is suggested in the appellant’s argument, the defendant is at a disadvantage because of the number of persons there residing who have similar causes of complaint against the defendant and have a common interest in the result of the litigation, the fact ■ is not one which changes the rules of evidence or excepts the defendant from the operation of the law which bears upon all alike. The doctrine is established by many cases that a corporation which is not invested with the right of eminent domain is liable to another who sustains special injury in person or property from the operation of its works: Pennsylvania Lead Co.’s Appeal, 96 Pa. 116 ; Gavigan v. Refining Co., 186 Pa. 604, and Farver v. American Car and Foundry Co., 24 Pa. Superior Ct. 579 are among the cases in which the principle is declared and applied. The injury complained of was peculiar and special to the plaintiff. It consisted in the destructive effects .and depreciation in value consequent upon, the fumes thrown off by the defendant’s works. It was something more than the general inconvenience to which the whole community was subjected by reason of the character of the business carried on in the vicinity. So far as appears from the evidence the defendant’s refinery was the only one there which was engaged in refining Texas oil and we may conclude from the evidence that it was the peculiar quality of this oil which caused the trouble. The burden rested upon the plaintiff to satisfy the jury of the existence of the nuisance complained of and the evidence furnished abundant support to the verdict. It is not an answer to the plaintiff’s charge to say that the defendant has erected extensive works at large cost and is engaged in the prosecution of a business useful to the public, and that the plaintiff’s rights are subordinate to the larger interests of the defendant and the public. The defendant chose to locate its works in proximity to the plaintiff’s property and to engage in a business which the jury has declared to be harmful to him. Neither the magnitude nor the importance of its business permits an invasion of the rights of another. “Whether it be the great corporation with its lead works or the mechanic with his tin shop the rule is the same: ‘ So use your nwn as not to' injure another: ’ ” Judge Gobdon in Pennsylvania Lead Co.’s Appeal, 96 Pa. 116. If in the advancement of its own interests the defendant has trespassed upon the rights of the plaintiff it cannot justify such conduct by showing that it gives employment to a large number of men and is an important factor in the commerce of the state.

The plaintiff does not seek to recover damage for the injury to the tenants. His allegation was that there was a physical injury to the property. The damage was to the freehold and not to the tenants’ occupancy. For such an injury the landlord may maintain an action notwithstanding the occupancy by a tenant: Devlin v. Snellenburg, 132 Pa. 186. There is no evidence that the tenants were bound to repair, and certainly no obligation rested on them to make reparation of the injury alleged to have been caused by the defendant: Earle v. Arbogast, 180 Pa. 409. The plaintiff is none the less entitled to recover even if he has not actually made the repairs. The value of his property is reduced to the extent of the injury whether he should determine to apply the amount of his damages to the improvement of his property or keep the money in his pocket. If his property had been wholly destroyed by the unlawful and injurious act of the defendant he would be entitled to compensation whether he rebuilt or not.

The declaration charged negligence, but it was not necessary that the plaintiff offer evidence in support of this averment. A nuisance is sufficiently charged and the question of negligence is not necessarily involved: Hauck v. Tidewater Pipe Line Co., 153 Pa. 366; Stokes v. Penna. R. R. Co., 214 Pa. 415.

The learned trial judge did not undertake to review the evidence of the many witnesses who testified in the case, but the attention of the jury was directly and pointedly called to the matter at issue which the court said was a plain question of fact; did the fumes from the defendant’s plant injure the plaintiff’s property in a substantial manner ? if it did, the defendant is liable for what it will cost to restore it. It is true the amount of the plaintiff’s claim was stated, but there was no intimation from the court that that was the amount to which he was entitled; on the contrary the jury was particularly directed to take into consideration all the evidence bearing upon the question as to what would compensate the plaintiff for his loss. We think the charge is not obnoxious to the criticism that it presented the plaintiff’s case more fully than the defendant’s. Under no aspect of the case would the court have been justified in giving binding instructions for the defendant. There was evidence tending to support the claim set forth in the declaration and it was the duty of the court to submit the question of fact to the jury.

The objection to the addition of interest to the amount of the verdict is purely technical. The verdict carries interest and the defendant has, therefore, sustained no injury. In order, however, that the judgment may be had in conformity to the proper practice, judgment is now entered in favor of the plaintiff for the amount of the verdict, $1,250, with interest from the date of the verdict, November 3, 1905.

The assignments are all overruled and the judgment affirmed.