On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Wachenfeld, Burling and Ackerson. For affirmance -- Justices Heher and Oliphant. The opinion of the court was delivered by Wachenfeld, J.
[4 NJ Page 138] This is an appeal to the Appellate Division from the judgment rendered in favor of the plaintiff below for $20,000, certified here by us.
The complaint was unusually long, originally containing thirty counts, many of which were dismissed, so that when the case went to the jury the only counts remaining were those sounding in nuisance.
The plaintiff is the owner of an amusement park called Tumbling Dam Park on Sunset Lake in Cumberland County, New Jersey. His property consisted of four tracts, one of which ran to the approximate center of the lake, two of the remaining three tracts consisting of upland property, while the last tract ran to the water's edge and carried with it an easement for boating, fishing and bathing purposes. The plaintiff's operations included a boat house, music stand, open-air dance floor, dodge-em, skating rinks, a merry-go-round, bath houses and other amusements from which he derived revenue, but no charge was made for the bathing privilege itself, which was used as a "leader."
Five miles north of the amusement park, the defendants, referred to collectively as Deerfield, operated a farm and processing plant, devoted to quick-freezing, canning and dehydration of various types of vegetables. The plaintiff contends that waste products from this plant were discharged into a stream, ultimately reaching Sunset Lake, causing pollution and consequent damage to the plaintiff's business during the six years from January 1, 1941, to December 28, 1946. The pollution was described as floating solids and masses of green materials on the surface of the lake, accompanied by disagreeable odors.
Deerfield produced and used its own water in its processing and contends its canning and quick-freezing operations were materially increased during the war because of Government demands and that under the War Manpower Act the Government had a right to demand these facilities, although it admits they were voluntarily supplied by the defendant. There was proof of this in the testimony of the former Quartermaster General of the United States Army. There was evidence of consulting chemists and biologists concerning two violent storms, one in 1934 and one in 1940, which washed away the dams and gates of Sunset Lake and deposited great
quantities of organic material, dirt, roots, tree stumps and other matter in the lake. The lake was refilled without dredging or cleaning the bottom. This, plus the weather conditions, precipitation and run-off of waters in the water shed between 1940 and 1946, caused the acceleration of the growth of algae, which, according to the expert testimony, was the cause of the unpleasant odor, the deposits and the discoloration of the water in Sunset Lake.
Another expert testified that the system utilized by the defendant for disposing of factory waste, water and effluent from domestic septic tanks of the type used by the defendant corporation was recognized as the acceptable practice for the treatment of sewage under the then existing conditions and the defendant contended it had made no unreasonable use of its property in that it had used all standard and modern means of equipment and methods to dispose of its waste and that the conditions complained of by the plaintiff existed because they were due to natural conditions over which the defendant had no control.
The plaintiff proceeded upon the theory and offered proof that his property had been damaged by the deposit of polluted sediment on that part of the lake bed to which he claimed title and, as a result, odors and other unpleasant instances of pollution occurred occasioning him loss of profits which he would have realized from the use and enjoyment of his property as an amusement park but for the unlawful acts committed by the defendants.
The trial lasted more than four weeks and sixty-two witnesses were heard, including a number of experts on both sides.
Three points are advanced for reversal: first, the court erred in admitting over objection the testimony of the plaintiff's expert witness, Fanscher, allegedly an expert on the operation of amusement parks, who testified as to the profits which would have accrued from the park operation during the war years; second, error in the admission of the testimony of the plaintiff's witness, Stubee, on cost of repairs and in the court's charge with respect to damages; and, third, the
admission over objection of resolutions of the Bridgeton City Council containing recitals of alleged illegal acts of the defendant. This is cited as error despite the fact the court in its charge instructed the jury to disregard this evidence.
In an effort to prove loss of profit, the plaintiff produced a witness, Fred W. Fanscher, who testified as an expert in the operating of amusement parks. His testimony was objected to because of lack of qualifications and special knowledge and also upon the ground that the hypothetical question asked of him was based on a false premise, was not the proper subject of expert testimony and encroached upon the functions of the trial jury.
His qualifications were attacked primarily because he never owned or operated in toto an amusement park. While this is true, the evidence shows him to have been connected with the amusement park business for twenty-five years in various capacities: operating concessions, acting as consultant, and selling amusement devices to park owners and concessionaires. His operations covered two hundred parks yearly from Maine to Georgia and he was a former director and official of the only amusement trade organization in the United States and Canada.
The qualifications of experts are left to the discretion of the trial court and the decision is conclusive unless clearly shown to be erroneous as a matter of law. New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 95 N.J.L. 189 (E. & A. 1896); Ross v. Commissioners of Palisades Interstate Park, 90 N.J.L. 461 (Sup. Ct. 1917); Essex County Park Commission v. Brokaw, 107 N.J.L. 110 (E. & A. 1930); Cowdrick v. Pennsylvania R.R. Co., 132 N.J.L. 131 (E. & A. 1944); Bosze v. Metropolitan Life Ins. Co., 1 N.J. 5 (1948). There was sufficient evidence to justify the ruling made below as to the witness' qualifications and we are not warranted on the record established in coming to an opposite determination.
Was the expert testimony concerning profits admissible or did it encroach upon the function of the trial jury? The true test of admissibility of such testimony is not whether
the subject matter is common or uncommon or whether many persons or few have knowledge of the matter; but it is whether the witnesses offered as experts have peculiar knowledge or experience not common to the world which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue. Rogers, Expert Testimony (3 rd Ed., 1941), § 31. Taylor v. Town of Monroe, 43 Conn. 36 (1875).
In Cook v. State, 24 N.J.L. 843 (E. & A. 1855), the court, stressing the assistance received from such testimony and emphasizing the function reposed solely in the jury, said:
"The line between questions of science or professional skill, to which an expert may legally testify, and questions of mere judgment, which the jury alone are to answer upon the facts proved, is not always susceptible of being clearly defined. * * * The opinion of witnesses, possessing peculiar skill, is admissible whenever the subject matter of inquiry is such, that inexperienced ...