*1 Et Al Lime Et Al v. Texas Lavon Hindman 16, 1957. A-6308. Decided October No. 947.) (305 2d Series *2 Mahanay James, Jr., James Cleburne, V. John A. for petitioners. Anderson, Cleburne, Anderson & White, and Curtis
Dallas, respondents. opinion delivered the of the Court. Mr. Justice Norvell injunction This is a brought suit by num- Cleburne, Texas, dealers against ber automobile Texas Company and Lime Limestone Products Company. Plaintiffs complained emission of processing lime from a and kiln Limestone Company owned Products which was being operated by Company Texas Lime Lessee; as being maintaining that defendants of suit were a nuisance to plaintiffs’ property the detriment of After a trial interests. jury upon special issues, judgment the court rendered nothing against plaintiff take Company Limestone Products grant requested against injunction refused to Texas Lime Company. However, plaintiffs various were awarded against money damages. recoveries Company Texas Lime opinion dealing an exhaus- tively pleadings with the part of the facts affirmed that judgment rendered in Company favor of Limestone Products refusing injunctive as relief, well as order but reversed portion and remanded that
monetary
damages,
recoveries for
Limestone
Hindman,
112. The
in the district court
brought
petitioners.
the case
here
par-
will refer to
*3
designations.
ties in accordance with their trial court
concluding
judgment
that
While
of the Court of Civil
affirmed,
agreement
should be
we are not in
with all
opinion,
that was said
hence the district court
an-
governed by
holdings
other trial will be
herein set forth.
correctly
grant
The courts below
refused
injunctive
to
prayed
by plaintiffs.
relief
by
fully supported
Such refusal
given
the reasons
authorities cited
Appeals,
(loc.
cit. 300
123) notably, Storey
2d
S.W.
Rendering Co.,
Hide
v. Central
&
509,
148 Texas
also,
Ridgefield
Bartel
Co.,
See
v.
Lumber
183,
131 Wash.
306,
683;
229 Pac.
37 A.L.R.
Luthi,
Robinson
Co. v.
Brick
Colo., 106,
171,
169 Pac. 2d
Compare,
support a that Company the cause in 1955 was plant Texas Lime made 15, 1955, Lime damage. February the Texas Com- On auxiliary building an production by attempted pany increase an in- used in connection with the lime kiln which was stack to operation at the end of fan. was discontinued ducted draft This July, complaints and it is inferable of dust 1955 because auxiliary stack resulted this inducted draft fan and the use of substantially greater quantities of lime dust in the emission conclusively as theretofore. The evidence did not establish than law, impossible impracticable it was or matter even causing operate without serious to others responsible that Limestone Products for the auxiliary installation of the stack. correctly Appels have concluded Court of Civil plaintiffs. recoveries awarded It
reversed
may
recognized
problem
that an onerous
is often
thing
encountered when the
which is a
should
nuisance to some
good
puublic
remain
nevertheless
unabated because of the
damages may
clearly
yet
serves. Substantial
indicated
*4
permissible
may present
measurement
thereof within
rules
diffi-
cuty.
annotations on “Dust
Extensive
as Nuisance” are con-
1401,
in
11 A.L.R.
tained
3 A.L.R.
and
While case presented suit, injunction presently as an we concerned legal damages with the actions for pointed thereto. As encompasses out the Court of Civil cause separate essentially
twelve causes action. instances, plaintiffs, most partnerships, as individuals as members of or damages items, namely (a)
were
for
awarded
two
expended
washing
cleaning
extra
in
lime dust from
monies
(b)
their
market
automobiles and
decrease
value of
consisting
“stocks of merchandise”
new
second-hand
plaintiffs
Two
awarded
automobiles.
crease in
were
recoveries
the de
lands
market value of
owned
them while
re
one
damages
enjoyment
covered
for the lessened
of his home. We
assignments
points
application
find no
for writ of
challenge
Ap
error which
peals
damage
consequent
as to its effect
these items of
ly they
need
be further noticed. While two
asked
only,
to their stocks of merchandise
most
requested
expense
of them
awards for both the increased
maintaining their
in an
attractive salable condition
n —
washing
polishing ,
and decreases in market value of
—
damage were,
stocks of merchandise.
however,
Such elements of
Orange
App. 522,
California
Co. v. Riverside Portland
Cement Co.
Cal.
Damages
injuries
orange
upon (a)
Pac. 694.
were awarded for
to an
orchard
loss
crops;
(b)
caring
(c) injury
increased cost of labor in
for orchard and
to citrus
trees.
Olympic
Co.,
Damages
Hardin v.
Portland Cement
89 Wash.
Pac.
temporary
(crop)
permanent
injuries
awarded for
to land.
Codding
Supply, Inc.,
App.
Damages
Braswell
La.
“In consider the items and none other:
“ ‘(a) money, expended any, reasonably The if amount 13, 1953, by plaintiffs from and after October the above named washing, any, polishing, any, constituting if if of automobiles the by solely stock of merchandise of said named caused foreign matter, any, or other
lime dust if from the Lime question; Plant in
“ ‘ diminution, any, (b) if in the reasonable cash mar- comprising ket value of automobiles said named merchandise, solely lime, dust, stock of cause or other for- eign any, matter, from the in question, Lime Plant from and ” after 1953.’ October expense washing While the to extra polish- ing probably meets the test of “some evidence” the same cannot testimony upon support said relied diminution in reasonable value of the “stock of merchan- plaintiffs. the various pleading dise” owned The form of re- lating general this item of in nature and the allegations plaintiff, claim of Barr, Sab that: illustrative. It averred Plaintiff, Barr, damaged has
“The Sam in the amount reason of decreased market value $660.00 of certain contained in his stock automobiles merchandise because the were decreased in by having said market value lime, foreign deposited matter dust and other them said lime plant.” washing no claim for increased made
Barr and polishing ex- *6 dam- him the sum penses awarded $330.50 out. ages portion pleadings his set above under that indicating testimony lime dust could There was using it alone an automobile water but washed from cleansing compound necessary polishing which use to necessarily reduced paint the natural lustre of the but restored destroyed ultimately protective the thickness surface sought support recovery by the entirely. it Barr his testimony narrative form: which we have reduced to the
“My the used-car name is Barr. I have business Sam been eight Street, Cleburne, Texas, Main for about at 1006 South try keep a years. principally I do a wholesale business regular get my a lot of record of transactions. white business easily, you stay lime dust on our cars. It doesn’t wash off but it, right, good. It it all it doesn’t look after will come off but so dingies bright more, up any unless a that it doesn’t look car so got bring you compound dust it and the life back. That white during pick my year on merchandise 1955 and I could out examples of that had been hurt the dust or some referring records, by cleaning my them I find too much. bought pickup I on 1955. I sold it 1952 Ford June August 29, made 1955. It was maroon color and the white dust brought pretty it fade car Had it not bad. This been $600.00. it affected this white dust I think would have sold for $650.00 Dodge bought pickup wholesale. I kept on November 8,1955.1 polish it it of white until December had to because gotten dust. Had it not affected the dust I think been $800.00 it, selling actually I sold it for less ex- but $10.00 $752.00 bought pense. September On 1955 I 1947 Pontiac which had I 1955. I had it about been renainted. sold on October got pretty a bright dust on it and didn’t look as month. White thereafter. Had it not affected the dust reason- its brought It able cash market been $200.00. value selling expenses. $10.00 less off for On October $137.50 bought Mercury door. I I four sold on December bought awfully pretty I It was an car when it and the got paint on it and I sold it at looked fresh. White paint If the had not Amarillo auction for by been affected $665.00. dust its cash value would the white reasonable have been $725.00.” history the sales of some four or
Barr recited five additional that at the time of the trial he had nine stated cars on cars and average year about 1955. He said his lot which was day. next day different cars might and have out one he sell cars ten fifteen average at for 1955 placed his turnover He handled in 1954 sales and cars per His estimate of month. *7 higher than in 1955. somewhat Motor Hindman Owen, partner & in the firm of Owen
Dale larger operator than testimony. Company gave He was similar ad- recovery $4,307.09 for of his firm was awarded Barr and washing expenses the diminution polishing and for and ditional consisting of the of stock of merchandise market value foreign lime, mat- solely by other dust and caused average sales plant. testified that his defendant’s Owen ter from probably more a month in and were about 100 cars were of automobiles years and 1955 the number For the averaged a rule. number cars as hand on between today might thirty cars of cars in stock was variable. “We damages for As to diminution not have but ten.” and tomorrow gave testimony as values, partner Hindman in market Owens sales, (reduced narra- to a particular to tive) : bought January 1955 we 1954 Ford Crestliner
“On green door, light green top kept and dark bottom four bought The car real nice when we three weeks. about practically a car. had to clean it and reclean it new finally $1,575.00 in which was it for Fort Worth what we sold paid it in If the finish on the car hadn’t had Cleburne. lime, damaged by cash this the car’s reasonable market value $1,695.00.” have been might given examples foregoing but Additional upon support of the relied nature illustrative allegations petition. money under the recoveries of each dealer were considered as a stock of the automobiles particular items from which were sold and then re- merchandise same manner as the placed in much the commodities handled grocery was not limited by a store. The to-the loss sus- i.e., item, automobile, particular but tained example to such item was considered as an required examples jury to infer a number damages varying sustained to a probable number of au- sum models makes-and of various remained in tomobiles irregular periods unequal and time. dealer’s stock proof employed opinion by plaintiff the method of In our prescribed by does not meet the essential standards As the law. case must retried we will treat the matter diminution of market value of the from the “stocks merchandise” standpoint sufficiency of the evidence as a matter of law support money recoveries award. As its disclosed opinion, Appeals approached problem standpoint pleadings from the and variances between allegations proof. pointed sought
As injuries above out were not specific automobiles but the evidence above detailed was of- “examples” ered as presumably from which the infer could damages resulting larger ato much number of automobiles concerning instance, which there was no evidence. Lavon For Hindman, Hindman, regard of Owen & testified in the sales history sixty during some automobiles handled the firm *8 year cars, they 1955. As to these Hindman said that had to times;” up a “part be “cleaned number of the finish on of them, quite damaged, a few” had been all of them “had damaged degrees.” varying* been Dave Owen testified that average year turnover for the firm for the 1955 100 per cars per year. month or 1200 cars According pleadings, to the loss has been occasioned cleaning expenditures increased car to the finish by frequent of “compounding” washing, automobiles occasioned polishing and single of This is automobiles. not a case aof act or occurrence such aas fire or flood destroy which would or imnair merchandise, the value of a stock of but rather in one volving day day a continuous emission of dust which rendered operations business expensive. more onerous and circumstances, Under such prevails a liberal rule as to the Supreme damages. measurement of As stated Court of Storey the United States Parchment Co. v. Paterson Parch Paper Co., 555, 248, ment Sup. 282 544, U.S. 51 Ct. 75 L. Ed. preclude tort itself is of a “Where nature as to certainty, ascertainment of the amount of with it would perversion principles justice deny fundamental all injured person, thereby relief to the wrongdoer relieve the making any amend for his acts.” The rule is well stated in Co., Shannon v. Shaffer Oil 10th 878, App., 2d as Cir. Ct. of 51 Fed. follows:
“* * * proof, permissible range there is Where within the right certainty, invaded, that a of a has he should
601 difficulty recovery because denied substantial not be damages. later authorities measuring his accurately uncertainty case where recognize distinction between damage resulted, any whether substantial exists of such extent only as uncertainty exists where the case * * * no damage. there need be plaintiff this does not mean But rule may not come damage. Obviously a amount wheat’ some say stole court no more than ‘the defendant into goods,’ for substan- destroyed my and ask that ‘a some of fire pro- has that, injured plaintiff damages. tial The rule an available, it is sufficient to afford and if duced the best loss, estimating denied he is not to be his a reasonable basis recovery amount of the exact a substantial because incapable ascertainment.” Ry. Galveston, Harrisburg Antonio Co. v. See also & San Groff, 134; 749; Texas 118 21 L.R.A. N.S. De S.W. Owen, Battery Corporation 131 Texas v. Southwest Caswell, 1097; Texas American Co. Civ. Construction S.W. ref.; App., Co. v. American Construction wr. S.W. C.J.S., 516, Davis, ref.; App., wr. Civ. 803, Damages, 631 and 90 and 155. Sections uncommon, situation, case we have which is plaintiff may where choose a group
measure thereof from a alternatives. The damages upon here could have chosen to their claims base would, injuries particular This finish of automobiles. course, vastly multiplied special issues *9 hand, by adopt- necessarily have to the other be submitted. On ing theory, plaintiffs the “stock of merchandise” undoubt- complexity edly complicated proof. problem the of Further joinder plaintiffs by parties entailed doubtedly the of numerous have un- complexity complicated problem proof. the Further of by parties plaintiffs joinder was entailed the of numerous so that we have in effect twelve in behalf of different lawsuits plaintiffs places whose of business are located at various dis- offending who, result, tances as a suffered from degrees damage. However, adoption compli- a various of of of and the selection of a rather difficult cated method trial damages theory vary evidentiary of re- cannot the established quirements, repetitiousness of nor will mere tediousness production possible detail excuse the of the under best showing uniformity of some of th circumstances. Without damage applied portion that could be a substantial involved, “example” “sampling” method here or
602 nothing guess
employed provides sur for a or more than basis 574, part Irvine, 44 jury, mise on the Joske v. 91 Texas 1059, findings apparent seems S.W. upon
the diminution in value of the stocks of merchandise rest conjecture.2 damages mere This for loss of does not mean that profits continuing injury cannot in certain be obtained cases, Galveston, Harrisburg Ry. Groff, & Antonio v. De San Co. 134, 102 433, 749; In 21 LRA. Northern N.S. S.W. 338, Vesey, diana Public Service v. & M. 210 Ind. Co. W. J. S. 620; Angeles, City 200 N.E. Los Natural Soda Co. v. 2d Cal. 143 Pac. 2d “stock merchandise” but the applicable present proof to the record and the Guttinger support recovery upon offered does not basis. Co., v. App. Calaveras Cement 2d Pac. 2d 914. Cal. agreement holding are not in with the judge the trial his re abused discretion in fusing respective damages sever causes of action for as plaintiffs serted misjoinder hereto. Defendants’ motion prior for severance was filed to commencement of trial and raised a matter pleadings. plaintiffs determinable from the All sought injunction alleged an to abate an nuisance and all of allegedly suffering them were complaint, from a common name ly, deposit lime premises. their It.is true allegedly suffered each of the was variable and the combination of all these counts in undoubtedly complicated problem one suit proof. There being advantages disadvantages result a severance the typically matter was one within the discretion of the trial court under Rule Texas Rules of Civil Procedure. Jung Neraz, 344; Hamilton, 71 Texas 9 S.W. Hamilton v. 450, Nuisances, 154 Texas 31 Texas Jur. Upon Section portion another the fact that judgment denying injunctive relief has cir been affirmed is a may properly cumstance which judge considered the trial determining ordering advisability a severance. interesting 2It is to note that if the same ratio of decrease in the market value testimony relating examples samples applied as that indicated by plaintiffs many to all the automobiles sold awards would have been greater they testimony actually instance, times than For were. Lavon Hindman’s sixty as to some cars him & ex mentioned indicated losses Owen Hindman *10 car, tending per approximattly being $45.00 $420.00 from mean Had $130.00. the average been extended all firm in cars handled the estimated at damage year $156,000.00. the for this alone would have amounted to some proceeded upon jury something per discrep $4.00 The like a car basis. This wide ancy strongly fallacy and it indicates seems ines rejected capable altogether indulged guess jury simply that the it and in a little work of its own. damage general form of set forth We have heretofore Regardless particular any of the date issue submitted. damages “caused as to injury, inquiry was made suffered first any, defendants’ lime, dust, foreign matter, from and/or original petition 1953.” Plaintiffs’ since October that the date and it obvious herein on filed October limiting the purpose of special for the inserted in the issue two-year limitation jury’s to events within consideration In our Annotated Texas Statutes. period. Article Vernon's does not constitute opinion, mention this date in the issué per not weight and the evidence we a comment on the reading the issue would suaded that any plaintiffs prob gained impression all we ably necessarily Nor do commenced on October 1953. regard respective to the dam that the issues essential age the date when should mention several according to the evidence. was first discernible Appeals and matters considered of Civil Other Court respective parties need not discussed in the of the briefs upon probably trial. will not arise another judgment Appeals The affirmed. How- Civil governed trial, upon ever the district court will be another holding herein set forth. Opinion delivered October sitting.
Associate Justice not Greenhill dissenting. Mr. Justice Smith respectfully holding majority
I from the dissent (1) wherein holds court the Court of pany Limestone Products Civil favor of Com- affirmed, recovery is (2) theory of should be that the theory. a proper duly excepted petitioners reflects that record filing gave appeal by appeal proper carried notice of bond and appeal Appeals. its forward in brief the Court petitioners point It is the on this contention where there has premises, a nuisance or continued existence demised may the lessor and lessee both liable for dam- ages resulting occupation actual lessee in the therefrom —the *11 premises, if he of its continues the after notice nuisance request it; lessor,
existence and he abate if first it, premises created and then the nuisance demised the with damage resulting them, and at of the therefrom the time receiving is I by way benefit of rent otherwise. therefrom agree petitioners. with the Company, The record reflects that Products Limestone owner, plant operated constructed the lime in until 1, 1953, April begun operation having plant in 1949. changes lessee, It is true that plant were made Company, began operations, Lime after it its can- but bring not changes be said that such rule the case within the majority, owner, stated Limestone Products Company, majority opinion was free of fault. The seems to re- cognize that the facts could have raised an issue as to the liabi- lity of the pointed complaint owner it is because out that is no being made judge’s here of the trial failure fact issues to submit liability going as to the of the owner. If case trial, to be reversed and remanded for new I think it then Court, parties should be remanded as to all and this its ad- visory opinion, should instruct the trial court that if the facts trial, give are same special on another it should issue requested which was in the first trial. That issue reads fol- lows:
“Special Issue No. Three you
“If Question foregoing answered the above and ‘yes’ No. only One then and in that event answer the question: you
“Do find preponderance from a Defendant Company, Limestone as owner of the question, unreasonably allowing permitting limestone foreign discharged dust and escape materials to be premises their they so that are carried in substantial ouantities by the Plaintiffs, wind air property currents onto the you have so found? ‘They unreasonably “Answer allowing are ‘They it’ or are unreasonably allowing not it’.” given Instructions should also be as to whether the four companion given. my opinion issues should be the trial court failing erred in to submit the issues. five contending they are therefore, petitioners, The The of law. against as a matter the owner entitled error. of this and remanded because case reversed should be that the shows that the evidence not hold majority opinion does *12 respon- the leasing premises the fault after not at was owner opinion that the Company. I am of the dent, Limestone Texas change that the reason for the a reversal majority demands view Limestone by the Texas plant made the operation of in the change fact issue as to whether raises a in 1955 Products thereby Limestone relieved the all fault eliminated longer it no that was liability the fact Company of because remanded creating the case is to be a nuisance. If causes of their several court, entitled to petitioners the against theory upon regardless the respondents both action theory the However, my the case under view a it tried. which proper and I am of one tried the case was supports the issues submitted opinion that the evidence the being judg- the for the jury, such issues basis the answer to the petitioners in trial court. Under entered in favor of ment desired, could, they file a motion view, petitioners so this Limestone waiving as to the claim of error in this their Company. agree majority does not In the event the agree findings jury, supports I still with do theory holding is not majority “stock of merchandise” proper applicable. I think is a as to as so data could to each automobile
sufficient be obtained degree certainty and exact- jury, a reasonable enable with course, required. That is all that is Of ness to ascertain loss. conjec- speculative purely which are elements of only it is such ele- and should not be allowed and tural cannot certainty ascertained reasonable be with ments of can simply a matter taken into consideration. It that should be why petitioners reason should be and there is no theory. I think cause of action based on this deprived of their Procedure, proper Rules of under Rule bring jointly against s-petitioners suit and, although may defendants-respondents, the trial voluminous, can nevertheless case and the record tedious multiplicity thereby avoid of law- lawsuit tried one just reach a result and at the same time suits pleadings and evidence. rules of well settled 16, 1957. Opinion delivered October