Green v. T.A. Shoemaker & Co.

• Decision Date: 28 June 1909
• Citation: 73 A. 688,111 Md. 69
• Parties: GREEN v. T. A. SHOEMAKER & CO.
• Court: Maryland Court of Appeals

73 A. 688

111 Md. 69

GREEN v. T. A. SHOEMAKER & CO.

Court of Appeals of Maryland

June 28, 1909

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by Rebecca A. Green against T. A. Shoemaker & Co. Judgment for defendant, and plaintiff appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and PEARCE, BRISCOE, SCHMUCKER, BURKE THOMAS, and WORTHINGTON, JJ.

Edward M. Hammond and Z. Howard Isaac, for appellant.

Wm. H Harlan and John L. G. Lee, for appellee.

PEARCE J.

This is an action by the appellant, a married woman, to recover damages for alleged injuries to her property and person, caused by the blasting of rocks by the defendants in the vicinity of her dwelling. She lived at Alberton, in Howard county, about 200 yards from the line of the Baltimore & Ohio Railroad, and the defendants were contractors, who were engaged in extensive work upon the line of said railroad during the year 1906, which required the blasting of large quantities of rock by explosives. The declaration contained four counts, and the first and second are substantially the same. They allege that at the time of the grievance complained of the plaintiff, as tenant, was in possession of three certain rooms in a house belonging to Mrs. Annie McIlvaney, in which said three rooms the plaintiff resided, and to the exclusive possession of which she was entitled; that the defendants from about April 14, 1906, to December, 1906, were engaged in blasting large quantities of rock near her said residence, and by means thereof caused large rocks and stones to be cast on the house in which she resided, and the lot of land appurtenant thereto, destroying doors, windows, sashes, and glass therein, breaking the roof and porches, and cracking the walls and ceilings of said house, and particularly of the three rooms occupied by the plaintiff, breaking the glass and china of the plaintiff and otherwise injuring her property, and wrongfully depriving her thus of the quiet and peaceable possession of said rooms as her dwelling. These two counts further alleged that, in consequence of said blasting, the plaintiff was struck and wounded by falling plaster and débris, "and was caused immediately by said blasting to be violently shaken and jarred, whereby she was greatly injured physically *** and her health has been greatly damaged and shattered, and her nervous system disordered, and she has suffered great physical pain in consequence, and has sustained serve and permanent physical injuries." The third and fourth counts are substantially the same. These counts, after alleging the plaintiff's title to, and occupation of, said three rooms, and the blasting operations of the defendants, with the resulting damage to said dwelling and rooms, as set forth in the first and second counts, further alleged that "immediately, and in consequence thereof, all persons on or about said premises, and those living in said rooms, including the plaintiff, were kept in continual fear and jeopardy of their lives, rendering a proper attention by the plaintiff to her duties full of fear and danger, and, as a further consequence, the plaintiff was wrongfully deprived of the quiet and peaceable possession of said rooms as her abode, and was frequently compelled, by day and by night, to seek shelter in the cellar, and that as a further consequence the said dwelling and the said plaintiff's rooms therein were subjected to incessant and violent vibrations, *** and the plaintiff and all other persons in said rooms were subjected to frequent and violent physical jars, and that plaintiff's health has been thereby greatly damaged and shattered, and her nervous system disordered, and she has by reason suffered great physical pain, and has sustained severe and permanent physical injuries."

The defendants filed the general issue pleas. The plaintiff testified that previous to 1901 she rented and occupied the same rooms as tenant of Mrs. McIlvaney, paying as rent $3 a month; that in 1901 Mrs. McIlvaney's husband died, and she then went to work in a mill nearby; that plaintiff then agreed with Mrs. McIlvaney to take care of her children and do her housework while she was at the mill, and that her rent for the same rooms at the same rate should be paid for by said services instead of in money as theretofore; that there was no community of interest or occupation of said house between Mrs. McIlvaney and the plaintiff; that she had exclusive possession and control of her three rooms, and Mrs. McIlvaney of the residue of said dwelling; that Mrs. McIlvaney furnished the meals, prepared the same, and they were eaten in her part of the house, and the plaintiff's arrangement for her family was the same; and that all their household arrangements were separate and distinct. She testified that the first blast was on April 14, 1906; that it knocked nearly half the plastering from the wall of the room she was in, and part of the ceiling. None of it then fell on her, though some fell on Mrs. McIlvaney's child. It seemed to lift the house up, and then let it fall. It broke every glass in the window except one. It threw the table upside down. It broke two dozen jars belonging to the plaintiff in the cellar of the house. On April 24th a stone burst through the roof and ceiling and came down through plaintiff's bed, mattress, and spring, and broke the slats and rollers. It weighed 22 pounds. That blast tore the window sash out, broke some in two, and threw them across the room. They did not sleep in that bed for six weeks after that. This blasting kept up till the fall of 1906. They often had to leave their meals and run to the cellar, and were in terror all night of being killed. She had to sit up in a chair at night the best part of six weeks while they were blasting across the river. She said: "My nerves were completely broken down through fright, and I was not able to do my work. Before that time, I was in ordinary health, and never was nervous. Since then I have had no health at all. Dr. Miller attended me for this nervousness, and he came every day during the latter part of April, and after that every week or so until fall." Dr. Miller testified that he was her family physician before and after this blasting; that after April 14th plaintiff developed nervous prostration which he attributed to the shock of the blasting. George Green, plaintiff's husband, testified that he worked for defendants at that time; that there was constant blasting going on, and that in consequence his wife had become a nervous wreck; that she was 30 years of age, and before this blasting had always attended to all her household duties, but since then has been unable to do so. On cross-examination he said: "As far as the renting of the house was concerned, I did not think the house belonged to me. I did not have any jurisdiction over it. I bought the set of furniture to which the bed belonged 16 years ago. My two sisters lived with me and I collected $8 a month rent from them." It is quite plain, as the whole rent paid Mrs. McIlvaney was $3 a month, that the $8 per month paid George Green by his sisters, and which he called rent, must have been for their board which was supplied by him. Mrs. Harris, the former Mrs. McIlvaney, who had since married, testified that she was a sister-in-law of Mrs. Green, and that the agreement in regard to the rent of her rooms was that "she was to take care of my children and do the work while I worked in the mill." She was then asked what Mrs. Green was to get for that, and she replied: "The use of the rooms she rented." Mrs. Davis, Walter Oldfield, and Hamilton Oldfield testified to the terrific blasting and the damage of the property. Upon the close of the plaintiff's testimony, the defendants moved to strike out all the evidence of the plaintiff's witnesses "bearing on the nervous condition and nervous shock to the plaintiff, and any physical injury resulting from such nervous shock, such testimony having been admitted subject to exception, because there is no evidence of any physical impact or corporal injury to the plaintiff." This motion was granted, and the first exception was taken to that ruling.

The defendants then prayed an instruction "that, under the pleadings and evidence in the case, there is no evidence legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendants"; and the second exception was taken to the granting of that instruction. The defendants having filed only the general issue plea to all the counts of the amended declaration, there is no question arising as to the form of the pleadings, and there are only two questions which it is necessary to consider: (1) Can the plaintiff upon the evidence which was admitted recover damages for the interference with her quiet possession and enjoyment of the rooms occupied and rented by her? (2) Does a cause of action lie for physical injury resulting from fright and nervousness caused by the wrongful acts of the defendants?

The evidence is undisputed that the rent for these rooms was always paid by the plaintiff, and not by her husband, and that the agreement of renting was made by Mrs. McIlvaney with the plaintiff alone. We are of opinion that under the evidence the plaintiff was not a mere lodger, the landlady retaining the legal possession of the whole house, but that she was a tenant entitled to the exclusive possession and control of the rooms she occupied. Blasting of rocks by the use of gunpowder or other explosives in the vicinity of another's dwelling house is a nuisance, and the person doing the act, or causing it to be done, is liable for all injuries that result therefrom. Wood on Law of Nuisances 153; 29 Cyc. 1167; Hay v. Cohoes, 2 N. Y. 159, 51 Am. Dec....