No. 82-246
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
JOHN B . FRENCH and RUTH FRENCH,
P l a i n t i f f and R e s p o n d e n t ,
RALPH E . MOORE, I N C . , d/b/a
I N T E R S T A T E TEXACO S E R V I C E S T A T I O N ,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of P a r k
H o n o r a b l e Jack D. S h a n s t r o m , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For A p p e l l a n t :
B e r g , C o i l , Stokes & T o l l e f s e n , B o z e m a n , M o n t a n a
G i g A. T o l l e f s e n argued, B o z e m a n , M o n t a n a
For R e s p o n d e n t :
G o e t z , Madden & Dunn, Bozeman, Montana
J a m e s H. G o e t z a r g u e d , B o z e m a n , M o n t a n a
--
Submitted: December 16, 1982
Decided: A p r i l 7, 1983
Filed: !PI? 7 - 1985
7
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The defendant, Ralph E. Moore, Inc. d/b/a Interstate
Texaco Service, appeals a judgment entered on a jury verdict
in Park County District Court. The action was a suit for
damages arising out of injury to real property caused by
gasoline contamination or pollution of the plaintiffs'
restaurant and family home. The suit was based on nuisance,
trespass, and negligence theories. The jury awarded $58,500
to John and Ruth French for diminution of value of the
property, for loss of use of the property, and for income
lost through closure of the restaurant. The jurv also
awarded $40,000 to John French and $150,000 to Ruth French
for pain, discomfort, fears, anxiety, annoyance,
inconvenience and other mental, physical and emotional
distress suffered by the plaintiffs as a result of the
invading gasoline vapors. Interstate Texaco appeals only
from the $40,000 and $150,000 awards. Interstate Texaco
contends the jury was given an improper instruction and
further that the jury verdict was excessive and rendered
under the influence of passion or prejudice. We affirm.
On January 14, 1981, strong odors of gasoline were
detected in the basement of a Livingston restaurant owned and
operated by John and Ruth French. The family home is located
on the same lot behind the restaurant and the Frenches live
there with their two daughters. Livingston fire officials
investigated the odor and immediately ordered the closure of
the restaurant because of the danger posed by the strong
concentration of gasoline fumes. The presence of gasoline
fumes has continued at the restaurant and family residence
since January 14, 1981, and the restaurant has remained
closed on order of the Livingston fire officials.
The contamination suit was based on trespass to real
property, negligence, and nuisance. The Frenches sought
damages for business losses such as loss of income caused by
closure of the business, loss of use of the property caused
by the gasoline fumes, and diminution of value of the
property caused by the presence of gasoline fumes. In
a.ddition, they sought damages for pain, discomfort, fears,
anxiety, annoyance, inconvenience and other mental, physical
and emotional distress suffered as a result of the invading
gasoline fumes. Before trial Interstate Texaco moved to
strike this last claim for damages on the ground it was not
permitted by Montana law. The motion was denied. The claim
is asserted again in this appeal.
Gasoline fumes, at various levels of concentration, were
present in the restaurant and home during 1981 and 1982 to
the time of trial. From the time of the restaurant closure
on January 14, 1981 to the time of trial in March 1982, the
restaurant and home were tested for gasoline fume
concentration. Livingston fire officials used a device
called a Bacharach Sniffer (sniffer)--which detects gasoline
hydrocarbons in the atmosphere in parts per million (ppm).
The readings commonly established a hydrocarbon presence at
levels dangerous to human health.
Dr. Samuel Rogers, a biochemist at Montana State
University, testified that the sniffer readings at the French
property indicated a clear "human health hazard." Based on
learned treatises in the field, he testified that it is not
safe, from a physiological standpoint, to enter a room for
even a brief period of time which has gasoline concentrations
of 2,000 ppm. He also testified that benzene, a constituent
of gasoline, is a known carcinogen (cancer-causinq agent) and
a leukemogen (an agent that causes leukemia). He
characterized benzene as genetically toxic.
The fire department readings during 1981 and 1982
indicated health-endangering concentrations of hydrocarbons.
On January 14, 1981, when the restaurant was closed, the
sniffer readings in the French home were 15-20 ppm,
considerably above the safety standards set by the Federal
Occupational Safety and Health Administration. On the same
day, however, the sniffer readings in the basement of the
restaurant had readings ranging from 8,000 to 9,000 pprn and
900 pprn at the top of the basement stairs of the restaurant.
The sniffer readings in 1982 were comparable to those in
1981, and those readings ranged at times from 0 to 9,600 ppm.
The levels of gasoline hydrocarbons routinely exceeded 2,000
pprn on the French property.
From the first time he took sniffer readings in the
basement of the French home, and at various intervals
thereafter, Fire Marshall Warren Case, told the Frenches that
it was not a good idea to stav in the home because of the
health and safety hazards. Fire Marshall Case also testified
that while conducting the sniffer readings he got lightheaded
and dizzy. The gasoline smell stayed on his clothes after he
left the building and, after he hzd left the building other
people had remarked about the smell of gasoline on his
clothes. The Livingston Fire Chief, Bob Hampson, testified
that after leaving the French premises and returning to the
fire station about 14 or 15 blocks away, he could still taste
the gas.
The closure of the restaurant caused other problems for
the Frenches. Although the restaurant was not their only
source of income, the uncontradicted testimony is that they
did not have the finances to move from the family home to
another place. The Frenches had also invested a good portion
of their life savings in the home and business, and because
of the gasoline vapors, they stood to lose both. At the time
of the restaurant closure, a loan of $105,000 was still owed
to financial institutions. Before the restaurant closure,
John French always made his payments on a regular basis.
However, they could not make the February, March and April
1-981 payments and finally the Frenches obtained a suspension
of the monthly payments owed until the closure problem was
resolved. Nonetheless, interest on this $105,000 loan
continued to accrue at the rate of over $55 per day. The
business problems alone caused the Frenches a great deal of
stress and mental anguish.
The uncontradicted testimony of the Frenches established
that despite the warnings from the fire department officials
not to stay in the house because of the high hydrocarbon
readings, they could not afford to move anywhere else and
that no one had offered to help them move pending a
resolution of the gasoline fume problems.
The gasoline fumes caused physical, mental, and
emotional problems for the Frenches. Although John French
testified that the only symptoms he had were dizziness at
times, which would be alleviated by simply getting out of the
house, other members of the family were not so fortunate.
Ruth French testified that after the onset of the
gasoline fumes, she developed a duodenal ulcer and that the
continuing stress caused because of the gasoline fumes
problem caused her ulcer to flare up. The gasoline fumes
affected her more than any member of the family. The fumes
got into her sinuses, caused headaches, and she would in turn
become nauseous. Often she was forced to vomit. One of the
Frenches' daughters complained of headaches and dizziness,
and her eyes watered to such an extent that she was always
putting a solution in them to alleviate the problem. The
other daughter is mentally retarded, and although she had
complained of no problems for most of the time, about one
month before trial, she began complaining of headaches and
dizziness.
The strong smell of gasoline, particularly in the
basement, often prevented the family from using the basement,
which includes a family room, a bathroom, a bedroom, and a
laundry room. Fire department officials warned them not to
use the clothes dryer for fear of causing an explosion. The
Frenches were forced with solving a problem beyond their
control. They took efforts, at the suggestion of the fire
department, to eliminate the gasoline fumes from their home,
but the problems continued.
The case was tried on theories that Interstate Texaco
negligently installed the gas tanks at the service station
and so caused the gasoline leaks leading to the contamination
of the French property, that in permitting the qas to leak
from its tanks, Interstate Texaco caused and permitted a
nuisance to exist, and that the invading gasoline fumes
constituted trespass to the French property. In instructing
the jury on the measure of recovery, one instruction stated
in part that the jury could award damages for ". . . pain,
discomfort, fears, anxiety, annoyance, inconvenience, and
other mental, physical, and emotional distress." With the
exception of the element of pain, Interstate Texaco objected
to this instruction on the ground that the pleadings did not
permit recovery for these factors of damage and that the
evidence did not support recovery for these factors of
d-amage. The objection was overruled.
After trial, Interstate Texaco moved for a new trial on
the same ground. The motion was denied. Throughout the
trial court and appellate proceedings, Interstate Texaco has
ignored the fact that the case was submitted to the jury on
the theories of nuisance and trespass as well as negligence.
Based on its underlying and erroneous assumption that the
case was tried only on a negligence theory, or that the jury
returned its verdict based only on a negligence theory,
Interstate Texaco complains now that the instruction setting
forth the damages recoverable, was in error.
As we have stated, the underlying action here is a suit
for damages arising out of injury to real property caused by
gasoline contamination or pollution of the Frenches'
restaurant building and the family home. The general measure
of damages provided for in all non-contract situations, is
provided for in section 27-1-317, MCA, which states:
"For the breach of an obligation not arising from
contract, the measure of damages, except where
otherwise expressly provided by this code, is -the
amount which will compensate - - - detriment
for all the
roximately caused thereby, whether it, could have
geen anticipated or not.' (Emphasis added.)
Where there has been a trespass to land, damages for the
discomfort and annoyance to the occupant, in addition to
damages to the land or for loss of use of the land itself,
have long been recognized. The rule for recovery is set out
in the Restatement (Second) of Torts § 920:
" (1) If one is entitled to a judgment for harm to
land resulting from a past invasion and not
amounting to a total destruction of value, the
damages include compensation for
"(a) the difference between the value of the land
before the harm and the value after the harm, or at
his election in an appropriate case, the cost of
restoration that has been or may be reasonably
incurred;
" (b) the loss of use of the land; and
" (c) discomfort and annoya.nce to him as an
occupant. " Restatement (Second) of Torts § 920.
The Restatement further emphasizes that:
"Discomfort and annoyance to an occupant of the
land and to the members of the household are
distinct grounds of compensation for which in
ordinary cases the person in possession is allowed
to recover in addition to his proprietary
interests." Also see Prosser, Torts 5 90, at 603
(4th ed. 1971).
These basic principles ha"ve long been applied in this
state. In Newton v. City of Roundup (1921-1,60 Mont. 24, 198
P. 441, this Court recognized that an owner or occupant of
real esta.te is entitled to recover damages for personal
inconvenience, discomfort, annoyance or mental anguish, in
addition to damages for depreciation in value of property or
its use, due to a private nuisance. And, in Nelson v. C. &
C. Plywood (1970), 154 Mont. 414, 465 P.2d 314, plaintiffs
filed an action for pollution of their water supply caused by
the defendant's dumping of glue waste resulting in noxious
waste, odor and color. In addition to the damages
recoverable for the cost of replacing or restoring the water
supply, the jury was properly instructed that it could award
damages for "discomfort, annoyance and inconvenience, if any
Although we also note that Interstate Texaco has ignored
the actual physical problems e . , physical injury) to the
French family as a result of the invading gasoline fumes, the
argument that there must be actual physical injury in such
situations has been rejected in other jurisdictions. In
Kornoff v. Kingsburg Cotton Oil Co. (1955), 45 Cal.2d 265,
288 P.2d 507, an action was brought based on nui-sance and
trespass for damages sustained as the result of dust
pollution emanating from the defendant's ginning mill. The
court upheld the right to seek damages for injury to real
property as well as for personal discomfort, annoyance,
nervous distress and mental anguish. The court recognized
the obvious that such damages would, or at least could, be
proximately caused by a defendant's invasion of the property,
even where there is no physical injury suffered.
The court further recognized that in California. the
". . . cases appear to draw no distinction between
cases involving nuisance and those involving
trespass in permitting an award of damages for
discomfort and annoyance directly resulting from an
injury to real property. There seems to be no
sound reason to refuse to award damages for
discomfort and annoyance where the only injury is
to the real property since it is obvious that such
an injury may cause discomfort and annoyance
without also causing an actual physical injury to
the person." Kornoff, 288 P.2d at 513.
,
In Edwards v. Talent Irrigation District (Or. 1-977) 570
P.2d 1169, the Oregon Supreme Court came to the same result.
Plaintiffs filed an action in both trespass and negligence
asserting damages sustained as the result of water overflow
on their property caused by defendant's irrigation ditch, one
of the claims being for mental anguish. In sustaining the
trial court's refusal to strike the cia-im for mental anquish,
the Court, based on Macca v. Gen. Telephone Co. of N.W., Lnc.
(1972), 262 Or. 414, 495 P.2d 1193, reaffirmed its ruling
that damages for mental anguish are recoverable in a
negligence action if they result from defendant's
interference with the use and enjoyment of plaintiff's land.
CORRECTION. In preparing this opinion for pub-
Hon. D a n i e l J . Shea lication, we noted in our verification of titles and
J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have
Room 414 J u s t i c e B u i l d i n g been made on our copy of the opinion.
215 N o r t h S a n d e r s
H e l e n a , Montana 59 620
Date:
May 4 , 1 9 8 3
Re:
F r e n c h v . R a l p h E. Moore, I n c . , No. 82-246, A p r i l 7, 1 9 8 3
P a g e 1 0 , l i n e 7 --- Nevada Cement Co. v. L a m l e r s h o u l d r e a d Nevada
.cement Co. v . L e m l e r .
,/
Page 1 0 , l i n e 10 --- 45 Wash.2d - s h o u l d r e a d 4 5 Wash.2d 346.
345
WEST PUBLISHING COMPANY
Box 3 5 2 6
St. Paul, MN 55165
The Court further noted that this appears to be the general
rule in states which have considered the question, citing
Annot., 28 A.L.R.2d 1075, 1087 (1953).
In addition to the California and Oregon holdings, see:
Miller v. Carnation Co. (Colo.App. 1-977), 564 P.2d 127;
Pollard v. Land West, Inc. (Idaho 1974), 96 Idaho 274, 526
E
P.2d 1110; Nevada Cement Co. v. Lsmler (1973), 89 Nev. 447,
514 P.2d 1180; City of New Cordell v. Lowe (Okla. 1963), 389
P.2d 103; Riblet v. Spokane-Portland Cement Co. (1954), 45
6
Wash.2d 348, 274 P.2d 574.
We likewise hold that damages for mental anguish are
recoverable in a negligence action where the claim j s that
.
the defendant has interfered with the use and enjoyment of
plaintiff's land. No sound reason exists to hold otherwise.
Interstate Texaco next argues that the jury awards for
"pain, discomfort, fears, anxiety, annoyance, inconvenience,
and other mental, physical and emotional distress"
constituted excessive damages because they were given under
the influence of passion and prejudice. The jurv awarded
$40,000 to John French and $150,000 to Ruth French. After
trial, Interstate Texaco moved for a new trial. Section
25-11-102(5), MCA, provides that a ground for a new trial
exists if the jury awarded "excessive damages . . . under the
influence of passion or prejudice." In denying this motion
the trial court remarked that its conscience was undisturbed
by the amount of the jury's verdict.
Interstate Texaco has pointed to no factors occurring at
trial which indicate that the jury's verdict was influenced
by passion or prejudice. No inflammatory evidence was
presented and no other factors have been relied on. Rather,
Interstate Texaco merely a.rques that the verdict is not
supported by the evidence. A precise measuring rod for the
amount of damages in a. case involving physical or mental
damages, does not exist.
The measure of damages for all noncontract causes of
action not otherwise specifically provided for by statute, is
provided for in section 27-1-317, supra, which ". . . is the
amount which will compensate for all the detriment
proximately caused" by the defendant's act or omission
"whether it could have been anticipated or not." See
Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835.
Each case must, of necessity, depend on its own peculiar
facts.
In applying section 25-11-102(5), supra, this Court has
long adhered to the rule that a jury award of damages will
not be overturned unless it shocks the conscience of the
court. Ashley v. Safeway Stores, Inc. ( 1 9 3 ~ ) ~ Mont. 312,
100
47 P.2d 53. In Ashley, we further stated that:
". . . It is not a question of the amount this
Court would have awarded under the circumstances.
It is not the amount which in our opinion would
compensate the injured party; rather, it is a
question of what amount of da.mages will the record
in the case support when viewed, as it must be, in
the light most favorable to the plaintiff . . ."
1.00 Mont. at 330, 47 P.2d at 62.
Although the amount which may be determined to be
unconscionable has varied from time to time due to the makeup
of this Court, nonetheless, the rules are still the same.
See Pfau v. Stokke (1940), 110 Mont. 471, 103 P.2d 673, and
Lauman v. Lee (19811, Mant . , 626 P . 2 d 830, 38
St.Rep. 499.
Interstate Texaco presented no evidence on the damage
questions involved in this appeal. And, although complaint
is made of the $150,000 award to Ruth French, Interstate
Texaco made the choice not to cross-examine her. Her
testimony therefore stands not only unrefuted but also
unweakened by whatever inroads a cross-examination may have
I
produced.
In asking this Court to invalidate the jury's verdict,
Interstate Texaco presents three arguments. The first
argument is that the amounts awarded to John French and Ruth
French hear no reasonable relationship to the amounts awarded
for the diminution of value of the real property, loss of
use, and lost business profits. The second argument is that
the amount awarded. to Ruth French ($150,000) is more than
three times that awarded to John French ($40,000) and
therefore it must be set aside. Third, Interstate Texaco
argues that the verdicts must be set aside as excessive
because they are out of proportion to cases decided in this
and other states where the same items of damages were
involved.
Interstate Texaco does not attempt to explain why a jury
verdict must be set aside because of an alleged disproportion
in separate items of damage. The damages awarded for
diminution of property value, loss of use, and loss of
business income have no bearing on the physical and mental
damages suffered by John and Ruth French. Nor do the damages
awarded to John French have a bearing on the damages awarded
to Ruth French. The uncontradicted evidence is that the
gasoline vapors caused more serious mental and physical
consequences to Ruth French than to John French, such as the
duodenal ulcer and the recurring stress effects on the ulcer.
In addition, Ruth French stayed in the family home most of
the time while John French left the home every day to attend
to another business. Under these circumstances it would be
more than anomalous if the jury did not award considerably
more to Ruth French than to John French.
Finally, Interstate Texaco would have us set aside the
jury's verdict on a basis of having compared the verdict with
verdicts in other cases cited in Interstate Texaco's brief.
These cases shed no light on the issue before this Court,
which is whether the jury's verdict shocks our conscience.
The cases were decided at different times, under different
factual circumstances, and in different jurisdictions. An
award of damages in one case is unique from an award of
damages in another case, and we will not use the one as a
measuring rod to determine whether damages in another case
were excessive because influenced by passion or prejudice.
We find nothing in the jury's verdict here to shock our
conscience.
The judgment of the District Court is affirmed.
We Concur:
-
Chief Justice