Keiser v. Mahanoy City Gas Co. , 143 Pa. 276 ( 1891 )

Opinion,

Mr. Justice Williams:

The manufacture of illuminating gas, in a town or city, by an incorporated gas company, is a lawful business. If the ordinary processes of manufacture are employed and conducted in the ordinary manner, equity will not restrain the prosecution of the business; but, if the company neglects to make use of the ordinary processes or the ordinary precautions, and harm is thereby done to others, the negligence will justify intervention by a court of equity to restrain its continuance, and sustain an action at law for the recovery of damages by the injured party. The right of action in such cases grows, not out of the exercise of its corporate franchises by the company, but out of the negligence of which it is guilty in the mannér of conducting its business. Artificial persons are bound equally with natural persons by the maxim, sic utere tuo ut alienum non tedas, and are liable in like manner to those who may be injured by their neglect to observe its requirements : Pottstown Gas Co. v. Murphy, 39 Pa. 257.

The plaintiff in this case seeks to recover damages, not for the establishment of the gas works or the manufacture of gas in his neighborhood, but for negligence in the manner in which the manufacture in conducted. He alleges that the waste from the works is turned into the North Mahanoy creek, a small stream which passes the gas works and crosses his own lot, and that by reason of the smell of gas arising from the waste his house is filled at times with offensive odors, affecting injuriously the health of himself and family and the comfort of his guests. The defendant denies that the unwholesome odors, noticeable at times in the plaintiff’s house, are due to waste in the stream or are the odors of gas, and asserts that they are due to the presence of slaughter houses and privies along the stream, by which its waters are loaded with impurities, and to the defective arrangement of the privies connected with the plaintiff’s hotel and stables. The defendant further denies that any appreciable injury has been sustained by the plaintiff by reason of the odors complained of, whatever may be their source.

Two questions are thus raised for consideration : first, is the defendant guilty of negligence in the management of the business of producing gas ? This is a question of fact, which was submitted to the jury upon all the evidence in a manner of which, neither party can justly complain. The remaining question relates to the measure of damages and is brought to our attention by the fourth, sixth, eighth, nineteenth, and twenty-third assignments of error.

The rule is well settled, as we have said in an opinion just filed in the case of Robb v. Carnegie,^* that a loss in the selling or rental valúe of real estate by reason of the establishment of a lawful but undesirable business in the vicinity, does not give a cause of action. A licensed hotel or a livery stable, a saloon or a meat market, and many other kinds of business are calculated to affect the' desirability of a neighborhood as a place .of residence, and consequently to depreciate the value of adjoining property, but the owners of such property are without legal remedy for their loss. Nor will the fact that the business of the adjoining owner is a source of some personal discomfort and annoyance, give a right of action, so long as the business is lawful and conducted in a lawful manner. There must be substantial injury done, and the act or negligence complained of must be the cause of the injury. If, therefore, the jury find that the defendant has been guilty of negligence in the care of its waste, and that the plaintiff has suffered a substantial loss as the result of tire presence of the waste in the stream, then a cause of action has been established and compensation should be made for the loss sustained.

What is that loss ? The burden of showing its nature and extent is on the plaintiff. If sickness of himself or other members of his family is alleged, the character and duration of the sickness should be shown, and the expenses or suffering incident to it, and the fact that it was caused by the presence of the odor arising from the waste should be made to appear. If loss of business is alleged, this should be shown with the like degree of certainty. The facts from which the jury may determine whether there has been a loss of custom at the hotel, due to the presence of the odor of the waste, and how great that loss has been, should be shown. It is not enough for the plaintiff, after having shown that a few transients went elsewhere for a night or failed to return to his hotel on their next visit to Mahanoy City, to guess that Ids loss of profits due to this single cause would reach eight hundred dollars per annum. If he has any knowledge of what his income was during the six years preceding the bringing of this suit, whether there was a falling off in its amount, and what that falling off was, he should lay the facts before the jury. If he does not know the facts or does not choose to disclose them, he cannot substitute a mere conjecture. Absolute accuracy is not required, but such facts as fairly lead to a conclusion and guide the jury in fixing the amount of his loss from this cause, should be laid before them.

The plaintiff also claimed exemplary damages. This subject was brought to the attention of the learned judge by the plaintiff’s third point, which asked that the jury be instructed that “ In determining this question, you may take into consideration whether or not the injury complained of was continued after the beginning of the present suit; the fact that an injunction was issued by the court to restrain the defendant, and whether or not said injunction was violated by the defendant.” The fact that the defendant continued the negligent practice complained of after the suit was brought, was, if shown, a proper subject for consideration in determining whether exemplary damages should be awarded or not. But the equity case was pending and undecided when this case was tried. The plaintiff had a right to go into equity in order to restrain, and to go into a court of law to recover damages for the negligent manner of dealing with the waste of the gas works ; but the fact that an action at law was pending would not help a chancellor in reaching a proper conclusion, nor would the fact that a bill was pending in equity be of any service to a jury in settling the damages which should be awarded to the plaintiff. Equally without significance was the fact that an application for an attachment was pending in the equity case. The application is the act of the plaintiff. When it is heard and determined, the defendant, if found guilty, will be punished for the contempt in the court whose mandate he has disregarded. But the jury in this case have no right to inquire “ whether or not said injunction was violated by the defendant,” and punish it for such violation by imposing exemplary damages upon it. It is not the violation of an order of a court of equity, but some act of wantonness directed toward the plaintiff, that must be found by the jury as a basis for the imposition of exemplary damages. If this was not so, it might happen that the court whose process it is charged has been violated, might on full hearing acquit the defendant of the alleged contempt, and discharge the rule for the attachment; while, in the meantime, a jury sitting in another court may have convicted and punished him for the offence which a chancellor after full investigation finds that he did not commit.

For the reasons now given,

The judgment in this case is reversed, and a new venire ordered.

* To he reported with the Western District cases hereafter.