*1 fifil prosecution ject Holtzclaw with asserts that the error discussion entering guilty restricting anyone plea. prior in so the cross-examination naturally to such of this witness was nevertheless harm- The court demurred approach, less, support in then stated broad and counsel but this view is without Appellant find out court that he wanted to record. was entitled to anyone promise question Holtz- made a if had ask the and to have it answered. summarily rejected appellant court entitled claw. The It follows that questioning with a this line state- to another trial.
ment, en- perhaps in the context and remanded for further Reversed indicating colloquy, preceding tire proceedings not inconsistent herewith. to the court. was an affront di- of the went The substance credibility. rectly It was to Holtzelaw’s possible inquiry
an into motivе and bias. promise or a a search for a reward government part return appellant. prosecution help in named and Smallwood were
Holtzclaw
as
against
indictment
aiders
abettors
Wright’s Grocery,
WRIGHT,
They
appellant.
Max
involved
T/A
Appellant,
transactions in issue.
inquiry
v.
have availed
answer to the
appellant
addressed
but it was
CORPORATION, Appellee.
MASONITE
inquiry and
wit-
to a relevant area of
WRIGHT,
Wright’s Grоcery,
Max
T/A
on cross-examination.
ness was
Appellee,
scope
of cross-examina
upon
tion and the
it are committed
limits
CORPORATION, Appellant.
MASONITE
discretion
the trial court and
9940, 9941.
Nos.
appel
will not
interfered with
Appeals
Court of
United States
late court absent an
of discretion.
abuse
Fourth Circuit.
1965,
States, Cir.,
Hendrix v.
5
United
971;
29,
F.2d
Robertson v. United
1965.
327
Argued
June
States, Cir., 1957,
discretion becomes Dixon v. States, Cir., 1964,
United
could should be exercised. court permitted question. have Alford Cf. States, 1931,
v. United 282 U.S. 624; King 75 L.Ed.
S.Ct. v. United 988;
States, Cir., 1902, 112 F. Meeks States, Cir.,
v. United 11 Alaska 598; 163 F.2d Sandroff v. United 623; States, Cir., 1946, 158 F.2d Far States, Cir., 1924,
kas v. United F.2d also See Wharton’s Criminal Evi dence, Ed., 863, pp. 12th Vol. 244-
245; Wigmore Evidence, Ed., 3rd III, 967, pp.
Vol. 525-526.
HAYNSWORTH, Judge: Chief We affirm District Court’s dismis- sal of this action in which the sought damages for loss a stock Judge, Bryan, dis- Albert V. Circuit goods grocery result store as a sented. gases, contamination the invasion was not intentional within requirements of the North Carolina
rule. there was winter In the formaldehyde strong odor large por- grocery A
plaintiff’s store. goods infected became tion his stock Many re- items were odor. with sale, and the remainder turned after goods unsalable. became the infected Wright before had never such a loss. sought of number thе assistance agencies governmental whose investi-
of gators unable detect formal- were dehyde gas atmosphere outside obviously store, though Wright’s it was Finally, present how- the store. within ever, acquaintance with access laboratory samples some facilities took according which, air of the outside by him, tests conducted disclosed presence gases. of some such feet Approximately 200 building in which plaintiff’s store op- factory conducted defendant pro- Approximately of its erations. 5% was finished board of masonite duction lacquers synthetic and varnishes. lacquers and varnishes contain Such urea-formáldehyde process In the resin. resin, small of formation formaldehyde may quantity free Moreover, such a resin is sub- may left. Elster, Maready W. and J. Robert F. jected to heat cеrtain acids (Norwood Winston-Salem, N. Robin- C. breakdown a chemical suffer sequent Hudson, Ferrell, Petree, son and Stock- formaldehyde gas release Robinson, ton, & Winston-Sa- Stockton ammonia. Wright. lem, C., brief), N. for Max theory for- It was the Cooke, Greensboro, C.N. Arthur 0. maldehyde gas present Thomasville, (Russell Landingham, Van spray haust from the booth in which Cooke, Greensboro, C., N. and Cooke & synthetic lacquers varnishes C., brief), Corp. N. for Masonite products to some HAYNSWORTH, Judge, source of the Before Chief and was the goods. BRYAN, permeated in- Circuit his stock of His SOBELOFF and Judges. was not an unnatural itial inference one, recognized by the ob- he first noticed This is Prosser and store, in his it seemed Restatement. noxious odor Since the lacquer Supreme Court, odor of a him to resemble the this sub- varnish, though governmental ject, frequently para- citеd thought vestigators phrased Restatement, provides odor in the store particularly point unlike that of the defendant’s exhaust useful of reference. *3 gases. Torts, Ry- In the Restatement of doctrine, applied v. Fletcher lands Though there was evidence of a source activity, ultrahazardous forth in is set store, in of the contamination inside the gov 519-20. The different rules lighter §§ vaporization fluid leak- erning liability for nuisances are ing from a number of stored containers Chapter 40, set forth in first gas-fired section heater, though near a provides of which is 822. That section shortly disappeared odor those that an actor is liable for a nontres suggestion containers were moved at the passory governmental another’s investigators, interests Dis- if, context,2 land in this trict Court resolved the factual conflict intentionаl and unreasonable. Un favor. It found that 825, der the invasion is intentional with § defendant’s offending gases was the source of the in the of 822 if the actor that caused the harm purpose plaintiff’s goods. acts for the harm At the same time, resulting found, knows that it is the District Court or is sub un- stantially evidence, contradicted certain to result from his con the defend- 826, seq., ant duct. knew of the harm Sections et that the elaborate the plaintiff suffering application rules for requirement until after the concurrent event, prior that it had received no com- the actor’s conduct be plaints any- unreasonable. living one else and that others Morgan High Co., Penn N. v. Oil area no similar harm. So 185, 682, C. was a noxious appears record, far as on this no one case. There was no has since suffered such harm from invasion was intentional within the mean- gases discharged by exhaust the defend- ing of Restatement for it §§ ant. persistent discharge was the result of a after actual harm findings On the of these basis the Dis- they causing. Nevertheless, trict Court concluded that the invasion Supreme Court of North took was not intentional and that the defend- pains point out: pri- ant’s conduct not an actionable * * vate nuisance under the person iaws of North to lia- [A] govern bility us this diver- for an intentional invasion when sity case. his conduct is unreasonable under the particular circumstances of the Some American states have * * Scope *. See and Introduction Rylands Fletcher,1 rule of gas v. noxious Note In- American Law They cases. are collected Prosser stitute’s Restatement of the Law of Torts, Edition, pages 3rd at 524-6. ** Torts *. They Maryland include and South Caro lina, Cirсuit, in this but not North Caro “An invasion of another’s interest lina. The more rule in the United the use and of land is Rylands confines the v. Fletcher States tentional in law of doctrine to ultrahazardous activities. when the whose conduct is in Rylands, 1865, course, contexts, Fletcher v. H. & C. be other one Eng.Rep. responsible reversed in Fletch invasions for unintentional Rylands, 1866, resulting er v. L.R. Ex. af land from reck- interests Rylands Fletcher, 1868, less, negligent, firmed L.R. or ultrаhazardous conduct. 3 H.L. 300. es- basis sition that such not an causing it, purpose or knows sential the cause of action. When conduct, Court, nevertheless, gone resulting from his out of it is way spell requirement certain out the of knowl- knows that edge language of, specific conduct. Restate- and with to result from his * Torts, to, ment Law of citation the Restatement’s formula- tion, (page 689). a conclusion that North Carolina has rejected principles impermissible. expressed Its conclusion was ultimate intimating Far from Caro- following language: lina the invasion need not be intentional “ * * * complaint is con- When the discharge if the alleges however, whole, strued as gases on its land own can be said to private nuisance facts which show a unreasonable done with due care un- from an intentional prudence, *4 Cоurt of plaintiffs’ of the invasion reasonable explicitly state it must stated that enjoyment of the interest in use and be. When the Court has stated the re- 690). (page their land.” quirement language of the Restate- ment, acknowledgment appropriate first from the The first sentence source, its of there is no room for a con- quoted opinion, Morgan cerpt from the rejection opinion struction of of meaning the as a above, be construed cannot the Restatement’s formulation. con- if the actor’s the is intentional case, it In that duct is unreasonable. a be founded Such construction cannot inten- harm the was that was conceded quotation of the Cardozo Court’s injunction for an tional. action was City Niagara of dictum in McFarlane v. to damages notice and for suffered Falls, N.E. N.Y. recеived, admittedly defendant, of the the quotation A.L.R. follows a state causing. fumes were intentionally harm the ment that one who creates equivalent simply language the is Court’s is harm nuisance liable for the “though of, be intentional the invasion negligence. regardless it causes meaning the rules the support within quotation proposi that lends to Torts, Chapter Restatement, tained in tion, subject the of discussion. immediаte activity unless his not liable the actor is support in It an inference that cannot so, That this was also unreasonable.” North the harm need not be in support that the in fact tended, finds the express inference by its statement ly by documented had ex controverted what the Court note, introductory to to entire opinion citation the pressly same said earlier Any Restatement. discussing the explicitly questiоn the when first of the doubt about What the Court said intention.3 by however, dispelled fact sentence, directing problem to itself immediate breath, opinion that, by its next negated cannot be dubious inferences “in- exactly meant what is language employed defines it derived from This is done prob tentional invasion.” a related but different very language of Restatement lem. fol- quotations, and is without The other North Carolina case to which lowed, immediately appropriately, parties principally look is Watts that section. citation Manufacturing Company, N.C. Pama holding Certainly, in a case It is It that at all. involved re-' which it was conceded motely suggestive wrought harm of ultrahazardous ac- tivity. propo- is, however, ordinary pri- causing for the cannot stand duty duty which, desist, dictum, of a there well terms 3. Even in the Cardozo оnly upon assumption supposedly, may implicit inten- would arise be an being approached tion, that harm was caused. because requirement. case, one define is said the intentional vate nuisance It said: be. case, appears “An another’s interest in- on a lot ad- the use and of land is built house
jacent
hosiery
mill.
tentional
to a
the law of
annoyance
operation
person,
no
whose conduct
hosiery
liability,
mill, but in 1960 the defendant
as a basis of
uses,
purpose
it,
for the
converted
other
installed
or knows
enlarged
machinery
it is
much
certain to re-
heavier
air-conditioning system.
(page 818).
The almost con-
sult from his conduct.”
heavy
new,
operation of
ma-
tinuous
language
That is the
of Restatement §
enlarged
air-conditioning
chinery and
positively
825. The
thus
af
court
equipment crеated vibrations which were
firmatively
foreclosed a construction of
pro-
house. He
transmitted
opinion
its
in North Carolina one in
tested,
Thereafter,
but to no
avail.
possession
of land
be liable for an
house
sustained
substantial
vibration
unreasonable,
though unintended,
non
damage.
trespassory
invasion of another’s inter
Again,
Morgan,
est in land
as in
there
no
conduct
is neither
nor
invasion was
ultrahazаrdous.4
use,
defining
requirement,
Its
tentional. The house
dam-
sustained the
language
age
when the defendant
continued the
Restatement
825 leaves
heavy machinery
speculation
operation
new,
no
room
Caro
*5
imposes
requirement
lina
of
harm it
no such
or
the
was
plaintiff
applied
the
use
would not be
the
and
accordance
import
his
the reasonable
fair
house. The fact
the invasion was
and
language
being conceded,
only ques-
the
intentional
used.
tion in the case was the reasonableness
language
uses,
course,
a court
activity on
of the defendant’s
its land.
negate
holdings.
cannot
its
There is no
inconsistency here,
Morgan,
its
That
court focused
attention
however.
only
readily
every
Watts,
Carolina
issue
and in
other North
case
plicable.
statement,
brought
area,
Thе court’s
has
this
which
been
ease,
attention,
clearly
context of that
that “The
to our
the invasion was
or
is whether
use is unreasona-
intentional.5
ble,”
and
It
was
literal
whole truth.
Court,
North Carolina’s
both
implication
rejection
no
contains
substantively
verbally,
has embraced
requirement.
the intentional
does
Nor
Restatement’s
formula-
the court’s
that one
applied
principles in
tion and
those
noxi-
liability
“is
to
for an
intentional
language,
ous
cases.
court’s
sim-
* * *
nontrespassory
ply
emphatically,
any sug-
forecloses
his conduct is
On
gestion
unreasonable.”
has
its embrace
been tenta-
trary,
classify
no
there
reason to
tive,
reluctant or reserved.
the invasion as intentional
it was
unless
Since,
diversity case,
in this
we
significance.
of some
required
apply
law,
are
to
surprising
would have been
if the
by
highеst court,
we
declared
are
large
court had
to
addressed itself at
liberty
disregard
not at
what
present.
issue which
ease did not
or,
process
done and said
of infer
Nevertheless,
Morgan,
pains
as in
it took
ence from
words not
extracted
immediate-
4. The
also cited
Mountain,
Court
Restatement
v. Town
Pilot
Glace
See
clearly
where it
(1965);
stated
265 N.C.
ly germane,
to its
to attribute
cases,
present
opinions
fact
in the North Carolina
conflict with
are
language
unequivocal
no
plain
and hence there was
occasion for the
argument
opinions
it.
If
Court
discuss
this
be
court has used in
same
factually
equal logic
directly
precise ques-
correct, then
us.
it follows that those cases do not hоld
tion before
qua
a sine
non for re-
negligence
was no
Since there
covery.
with
and the invasion was unintentional
of the rule
private
Carolina,
nuisance in North
A
prop
District
North
erly
continuing
generally,
and
condition,
consists of a
private nui
was no
concluded there
acts, springing
or recurrent
giving
to a cause of action
sance
rise
from
an intentional or
use
damages.
substantially injuring
property
one’s
property,
another
his
or
Affirmed.
through
unprivileged
and unreason-
Judge
BRYAN,
ALBERT V.
Circuit
able invasion of the
utilization
latter’s
(dissenting):
of his land.
Although he
forced
abandon his
personal and
Such an intrusion
infiltration
business
rights
property
is actionable
of another
odors,
as the ma-
store with noxious
intentional,
generating
if
acts are
yet
jority finds,
denied
negligence.
proof
there be no
holding
damages.
premise
hand,
injuring
if
the other
On
of a nuisance is
is that until the creator
neglect
were accidental—devoid
acts are
notified that his
recovery.
no
If the
can be
tent—there
another,
no
of action ac-
deliberate,
conduct is careless
injuriously
griev-
latter, no
how
matter
crues
upon the
entrenches
consequences
ous
the intrusion.
rights
another,
operation
consti-
amazing.
property
are
view
One’s
nuisance,
no
an actionable
tutes
may
by offensive
be invaded
fide it
how innocent
bona
matter
*6
weeks,
not
for
source
discoverable
believe,
are,
propositions
I
be. These
years, and in the end the
months or even
in
Carolina.
doctrine North
property
or
rendered uninhabitable
other-
findings
Court’s
estab-
The District
valueless,
injury
wise
is not ac-
but
concedes,
majority
lished,
as the
I
!
cаnnot believe this
the law
tionable
emitting
purposely
appellee Masonite was
in North Carolina.
gases,
and
which
noxious
unreasonably
majority
upon decid-
seems intent
Wright’s property.
invaded
ing
according to the law of the
this case
Thus,
Masonite
his hurt arose
what
Torts,
but that is not our
Restatement
obligation.
do, e.,
expel
did,
and
intended to
and
i.
bound
ac-
We are
law
fumes.
rid
of unwholesome
cording to
Carolina even
North
negligent,
True,
expulsion
not
My
it
from the Restatement.
deviates
reckless,
in
accidental
ultrahazardous or
Supreme
.analysis of the North Carolina
any sense,
not intend
and Masonite did
discloses that while the
Court decisions
injure anyone,
injury there was.
but
cited, it
been
has not
Restatement has
slavishly
Other authori-
been
followed.
ascertain whether the acts were
To
cogni-
too. With
ties have been cited
tentional,
inquiry is
in North
directed
yet
all,
Court has not
of them
zance
rightly
think,
Carolina, and
to the vol-
I
said,
opin-
read
North Carolina
I
offending
This
acts.
untariness
inquiry
ions,
recovery
in
cannot be allowed
pertain
does not
to the effect
proof on the
scienter
absence
consequences
not
of the acts. It is wheth-
part
offender.
intentional;
injury
but
er
causative acts werе intention-
in
whether
This element is not made crucial
only question
respect
ally
opinion I
find.
done.
can
'North
things
cautions.
is not
do
it was substan-
whether
to the
all,
at
whether
ishe
or care-
and unreasonable.
tial
City
Niagara
ful.’ McFarlane v.
my
ap-
Precedent
North
Falls,
247 N.Y.
160 N.E.
impose
prerequisite
praisal,
not
does
(Id.
(Accent
690)
A.L.R. 1.”
at
add-
the condition
of “intentional”
ed.)
guilty.
guilty
It is
he is
offender know
property is
If
if his use of
was dictum
intentional
when writ-
ten,
majority suggests,
use.
as the
unreasonable
now
deliberate
objection-
been
comparable
proposition
established as a sound
circumstances —
adjoining
gases
refinery
jurisprudence
able
from a
North Carolina.
Morgan
High Penn
land —the Court
principles
These
confirmed
Co.,
S.E.2d 682
Oil
238 N.C.
Watts v.
Manufacturing
Pama
Company,
comprehen-
(1953)
points in a
made these
256 N.C.
(1960)—