104 Kan. 362 | Kan. | 1919
The opinion of the court was delivered by
The defendant appeals from a judgment in plaintiff’s favor for damages caused by smoke, fumes and gases from the defendant’s smelter, which destroyed plaintiff’s crops and killed or- inj ured his live stock.'
The plaintiff was in possession of a 12-acre tract of land adjoining defendant’s smelter on the east, which he had rented for a number of years, and upon which there was growing an acre of strawberry plants, a number of bearing grapevines, and various other crops. On another tract near by, occupied by plaintiff as a residence, there were bearing peach trees and a garden. Three or four blocks' west of the smelter plaintiff owned several lots upon which there were growing strawberry plants. Another tract of 40 acres was used by plaintiff as a pasture for his horses and other live stock. The petition alleged and the plaintiff’s evidence tended to prove that smoke and fumes were blown over each of these tracts at different times, and that smelter smoke contains sulphur, arsenic, lead and zinc in various' combinations, all of which are liable to poison animals, and to destroy growing vegetation.
The special findings were in favor of plaintiff’s contentions. There are nine specifications of error, several of which are presented and argued together. Upon a careful examination of the 200-page abstract we are unable to concur in the defendant’s claims numbered 1, 2, and 5, that there is no evidence to support certain findings of the jury with respect to the damages sustained by the plaintiff, or to sustain the finding that these damages were caused by fumes and gases that came from the defendant’s smelter. In order to answer these contentions of the defendant it would be necessary for us to weigh the testimony. The third and fourth points urged are that certain findings are “against the clear preponderance of the evidence,” and it is quite manifest that these cannot be considered, because they require the court to weigh the conflicting evidence.
In Wichers v. New Orleans Acid & Fertilizer Co., 128 La. 1011, it was held:
“A plaintiff sustains the burden of proof when he shows that at the time his plants were destroyed and damage suffered, the defendant’s factory was freely emitting- fumes, gases, and acids, which are destructive-of 'plant life, and that the wind was blowing the fume, etc., towards his premises, some 900 feet distant, and tt/at there was no other known agency of destruction existing in the vicinity.” (syl. ¶ 2.)
(See notes in the same case in 1 N. C. C. A. 697.)
If there was inconsistency in the statements and testimony of the experts called by the plaintiff, the defendant would not be entitled to have the demurrer sustained for that reason. The effect of their testimony was properly submitted to the jury. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.)
It- is said that the court erred in permitting the veterinarians to testify that in their opinion the stock in the vicinity of the smelter had been made sick from smoke and fumes from the smelter, without proof that the smoke and fumes contained deleterious substances. The contention is that the evidence
During the trial the plaintiff called a witness who lived about a mile from the smelter, and he was asked whether he had had a conversation with Mr. Hinkle, who was in the smelter office, and who sometimes went and examined claims of this character against the company. The witness testified that Mr. Hinkle came to his pasture and looked after his stock in 1916, that “the smoke was very bad there, but not so bad .as lots of times, and Mr. Hinkle told me that if your stock won’t eat it they’ll breathe them, and — .” The answer was interrupted by an objection which was overruled. The witness further testified that the conversation was about his young mules, and that he had no conversation with Mr. Hinkle about cattle. The admission of this testimony is urged as reversible error. It is said there was no proof that Hinkle was an officer of the company or that he had authority to make any statements to bind the company; and the usual authorities are cited in support of the contention that the declarations of an agent, in order to bind his principal, must not only come within the scope of the agent’s authority, but must also be made by the agent while he is transacting his principal’s business and be connected therewith. We think that whether the evidence was admissible or not, all Mr. Hinkle was shown to have said could not have prejudiced defendant or affected the merits of the case.
We find no error in the record, and the judgment is affirmed.