American Potash & Chemical Corp. v. Nevins

163 So. 2d 224, 249 Miss. 450, 1964 Miss. LEXIS 406
CourtMississippi Supreme Court
DecidedApril 20, 1964
DocketNo. 43000
StatusPublished
Cited by4 cases

This text of 163 So. 2d 224 (American Potash & Chemical Corp. v. Nevins) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Potash & Chemical Corp. v. Nevins, 163 So. 2d 224, 249 Miss. 450, 1964 Miss. LEXIS 406 (Mich. 1964).

Opinion

McElroy, J.

This case involves an appeal from a judgment of $2,000 entered on a jury verdict for appellee, plaintiff in the lower court, by the Circuit Court of Monroe County, Mississippi, where appellee filed suit to recover damages to a growing crop of cotton by chemicals escaping from appellant’s plant during its operation.

Appellee charged in the original declaration that during the spring and summer months of 1959 he was growing cotton at Hamilton, Monroe County, Mississippi ; that appellant, defendant below, at that time owned, operated, and controlled a chemical plant located approximately one-half mile in a southwesterly direction from the community known as New Hamilton, Monroe County, Mississippi, being situated east of the Tombigbee Biver and west of U. S. Highway 45; that appellee had a crop of cotton located approximately one-quarter of a mile in a southeasterly direction from appellant’s plant; that appellant collected, handled, produced, stored and manufactured poisonous and dangerous chemicals on his premises, and the handling, production, storage and manufacturing of these poisonous chemicals were under his direction and control; that appellant negii[453]*453gently handled, produced, manufactured and allowed to escape from its premises, or caused to escape from its premises, dangerous and poisonous chemicals which damaged seventeen acres of appellee’s cotton, causing the cotton to fail to produce; that as a result of this negligence appellee lost seventeen bales of cotton valued at $175 per bale, or $2,975; that appellant was under a duty to exercise ordinary and the highest degree of care to prevent damage to appellee’s property, and that appellant breached its duty in not exercising the required degree of care to prevent gaseous poison and gas fumes and chemicals from escaping from its plant and contaminating the appellee’s growing cotton; that by the exercise of the required degree of care appellant would or should have known that its chemicals would do damage to appellee’s cotton; and that appellant breached the duty owned appellee, and as a direct proximate consequence appellee was injured and damaged.

The amended declaration charged appellant with continuously and negligently emitting dangerous and poisonous gases and chemicals from its plant; charged appellant with the duty to inspect and cause inspections to be made to determine if its operations were causing damage to appellee and others; charged appellant knew or should have known the dangerous propensities of its chemicals and gases; charged it was under a duty to warn appellee of its dangerous operations; and charged that appellant damaged appellee’s property and the property of others in the vicinity, thereby committing a trespass upon appellee’s property.

Appellant denied it owed appellee any of the duties charged as breached in the declaration or was negligent or under duty to exercise the highest degree of care. It admitted it operated a chemical plant at Hamilton, Mississippi and loosed into the atmosphere chlorene gas and sodium chlorate dust in small quantities, but denied the amounts were sufficient to damage man or [454]*454plant. It denied it owed plaintiff the duty to inspect or warn him or that the chlorene gas and sodium chlorate emitted polluted the air. It denied further that appellee’s cotton was damaged as a result of its operation, or that it knew or should have known that sodium chlorate and chlorene gas would kill cotton if it got on it in sufficient quantities.

The facts of this lawsuit are simple. Appellee, a lifelong, experienced farmer was growing* cotton in Monroe County, Mississippi during 1959 on a farm he rented on fourths. One-quarter to one-half mile to the northwest appellant was operating a chemical plant, which had operated and produced sodium chlorate since the last month of 1958. This operation requires the use of sodium chloride with electricity, and by several processes it is reduced to a liquid and then transformed into a solid, sodium chlorate.

During manufacture a by-product, chlorene gas, is produced, and is purposely emitted into the atmosphere. The sodium chlorate is produced in cell vats. In this plant there were fourteen vats, each giving off chlorene gas, sodium chlorate, and sodium chloride, any one of which, or a combination of any two, would kill or damage cotton if a sufficient amount got to it. There were also sodium chloride and sodium chlorate escaping from the hammer mill and loading chute in unknown quantities, and there was no way to determine how much was escaping from these sources. Appellant contends that it was escaping* in small amounts, yet it admitted it was escaping to the extent that it had become an economic factor; and it says it can determine accurately the amount escaping with tests, but admits the amount escaping can vary from nineteen to one hundred fifty pounds of a particular chemical per day.

The appellant knew these chemicals were escaping, and that they were used as cotton defoliators and weed killers. It knew the appellee was growing cotton in [455]*455close proximity to the plant, yet failed to inspect or warn him of its operations.

During- the summer of 1959 appellee and others in close proximity to appellant’s plant noticed damage to their cotton and called Mr. Cason Randall, the county agent, to inspect their cotton. Mr. Randall inspected the cotton and later inspected it with Dr. Rupert D. Palmer, Mr. Adams (manager of appellant’s plant), Mr. Nevins (appellee), and Mr. Hollowell. No other damage in the county of that nature was reported to Mr. Randall.

Dr. Rupert D. Palmer, an expert in chemicals and plants from Mississippi State University, testified that he visited appellee’s cotton field, from his experience and observation the cotton was damaged by chemicals, and in view of the pattern of damage, in his opinion the chemicals came from appellant’s plant. He stated the obvious thing was the leaves on plants of cotton, corn, johnson grass, sweetgum trees, and other plants had circular dysecated areas in the leaf surface which he recognized as toxic chemical.

Appellant used as witnesses Dr. C. H. Arndt, botanist and plant pathologist, and Dr. J. B. Sinclair, plant pathologist. Dr. Arndt, outstanding in his field and with long years of experience, research and study, came to appellant’s plant in September, 1959 and made an exhaustive investigation of all kinds of plants growing-in the area around appellant’s plant. He went into appellee’s cotton field, took leaves of cotton, examined the stalks, the grounds and state of cultivation, rainfall for the season, and gave as his expert opinion that the gases and chemicals emitted from appellant’s plant did no damage to appellee’s cotton. He said the damage was caused by poor stand of cotton, small stalks, soil dry and hard and not properly cultivated, and leaf damage by recognized pathogenes and spider mites.

Dr. Sinclair, employed by Louisiana State University and the Louisiana State Experiment Station, inspected [456]*456appellant’s plant and surrounding’ area in 1961 and 1962, and did some research and experiments with sodium chlorate, sodium chloride and chlorine gas on growing cotton. He determined it would take a concentration of 50,321 parts per million of sodium chlorate to defoliate cotton. It was his opinion also that appellee’s cotton field was deficient in potash, which would produce the symptoms and trouble described by appellee.

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Cite This Page — Counsel Stack

Bluebook (online)
163 So. 2d 224, 249 Miss. 450, 1964 Miss. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-potash-chemical-corp-v-nevins-miss-1964.