35 A.2d 845 | Conn. | 1944
The plaintiff conducts a forge and manufacturing plant. It brought this action against *486 the defendant, which conducts a fertilizer manufacturing business requiring the processing of castor beans, claiming that the dust created by the processing impaired the health of the plaintiff's employees and so affected its business production. It sought an injunction restraining the defendant and "an order under the provisions of the statute for the discontinuance or abatement of such nuisance or for regulating the manner of conducting the defendant's business as the court may deem necessary." Judgment was rendered for the defendant and the plaintiff appealed, assigning as error the conclusions of the court on the facts.
The finding is not attacked and the facts necessary for a determination of the issues are as follows: The parties operate factories opposite each other on Howard Avenue, Bridgeport, in a heavy industrial zone. The gross sales of each run into millions of dollars yearly. The plaintiff makes heavy forgings for war purposes. The defendant manufactures fertilizer and as an incident produces castor oil, a war necessity, under army supervision. The oil is extracted by crushing the bean. There remains a pomace which has no essential war purpose but is high in nitrogen content and a valuable ingredient in fertilizers. Prior to 1935 this pomace was ground into a fine powder, and dust from it drifted on to the plaintiff's property causing certain of its employees symptoms comparable to those of asthma. Attacks of this kind interfere with the work of these employees and may seriously affect the individual and in that way affect the plaintiff's production.
The plaintiff brought this action in 1935, and a temporary injunction was issued by the Superior Court restraining the defendant from grinding the pomace upon the premises and from loading or shipping it from its factory except by boat or rail at night. *487 This order was complied with but, in spite of this and of serious and expensive efforts to prevent the emanation of dust, on certain days the PLAINTIFF'S employees claim to have suffered various degrees of discomfort and interference with their work from it. The only further means to prevent the dust is to stop the production of castor oil on the defendant's premises.
The plaintiff's employees who complain were affected in varying degrees, requiring a cessation of work for a short time, a matter of hours or a day or more. The attacks resulted from the inhalation of the castor bean dust, to which some persons are inherently allergic. Others, not allergic, may become so by exposure over a period of time. The number of plaintiff's employees varied from one hundred and twenty-five in 1935 to four hundred and seventy-four in 1942. From March, 1935, when the grinding was discontinued, to June, 1942, the time of trial, the total number of employees affected sufficiently to quit work was twenty-eight. The total number of occasions when it was necessary for employees to quit work and go home was twenty-seven, of which one man accounted for sixteen. During this period others have been affected to a slight or insignificant degree. The plaintiff's production has been discommoded by the inability of those affected to work, but no effort was made to translate into dollars any financial loss it may have experienced. Of the defendant's own employees, one hundred and twenty-five in number at the time of trial, only two were affected in that period. It would require six months to a year to remove the defendant's plant to another location, if one could be found, and entail considerable expense. Several of the plaintiff's employees, most seriously affected, have brought actions for money damages against the defendant which are now pending. *488
The right to the remedy which the plaintiff sought was based upon interference with production. It claims that, such interference having been found and a nuisance established, judgment for it must follow. But the plaintiff seeks an injunction and "injunctions fall within the field of equitable remedies and not equitable rights." Loew's Enterprises, Inc. v. International Alliance of Theatrical Stage Employees,
The trial court based its judgment upon two major conclusions: (1) There was no substantial violation of the plaintiff's rights. (2) The use of the defendant's plant was not unreasonable, especially in view of the war effort. The first conclusion was based in part upon the assumption that the castor bean dust does not affect normal persons but only those allergic to it. There is authority for the rule that persons of ordinary health and sensitiveness rather than those affected with disease or abnormal physical condition are to be considered in relation to the injury caused by nuisance. Wade v. Miller,
Passing to the court's second conclusion, that the use of the defendant's plant was not unreasonable, especially *490
in view of the war effort, it appears that it was in a heavy industrial zone; Nailor v. Blakeslee Sons, Inc.,
The plaintiff claims a right to a continuance of the restrictions upon the defendant fixed by the temporary injunction. The conclusion of the trial court that sufficient facts were not proven to establish the right *491 is supported by the finding. The defendant has abandoned grinding the pomace and removed the machinery used for that purpose.
A further claim is made that in any event the plaintiff is entitled to judgment for injunctive relief to take effect after the war. The trial court's additional conclusion that there is no threat of substantial interference with the plaintiff's production, which we have upheld, disposes of this claim.
There is no error.
In this opinion the other judges concurred.