Bynum v. Mandrel Industries, Inc.

• Decision Date: 02 November 1970
• Docket Number: No. 45932,45932
• Citation: 241 So.2d 629
• Parties: W. W. (Bill) BYNUM v. MANDREL INDUSTRIES, INC.
• Court: Mississippi Supreme Court

Page 629

241 So.2d 629

W. W. (Bill) BYNUM v. MANDREL INDUSTRIES, INC.

No. 45932.

Supreme Court of Mississippi.

Nov. 2, 1970.

Rehearing Denied Dec. 21, 1970.

Melvin, Melvin & Melvin, Laurel, for appellant.

M. M. Roberts, S. Wayne Easterling, Hattiesburg, for appellee.

RODGERS, Justice.

This case came to this Court from the First Circuit Court, District of Jones County, Mississippi, on an appeal from a judgment entered by the trial judge in favor of Mandrel Industries, Inc., after a jury had returned a verdict in favor of the appellant W. W. (Bill) Bynum against Mandrel Industries, Inc., in the sum of $8,000.

The claim for damages against appellee arose under the following circumstances. The appellant, Bynum, is the owner of a certain 120-acre tract of land used as a homestead and which is located in Jones County, Mississippi. Appellant is engaged in farming and raising cattle. He has developed the farm by improving his pastures and by digging ponds to supply water for the cattle.

In July 1967 a seismograph crew approached the appellant and requested the right to drill and explode charges on the land of appellant. Mr. A. C. Baylor represented himself to be permit agent for Mandrel Industries, Inc., and agreed upon a price of $15 per hole, which was later paid by Mandrel Industries, Inc.

The seismograph crew went upon appellant's land and made six 'shots.' That is to say, they drilled six holes and set off explosives in the holes. One of these holes was made one hundred feet from the dam to one of the ponds on the appellant's pasture. The appellant went to the pond immediately after the explosion and discovered that the water in the pond was muddy and that water was bubbling and running out of the hole where the 'shot' had been made near the dam. The seismograph crew attempted to plug the hole with cement, but to no avail. Later, a Mr. Baylor came to the appellant's home, driving an automobile which had Mandrel Industries, Inc., advertisement painted on the automobile, and thereafter, an attempt was made by the seismograph crew to put well drilling mud in the pond. This activity did not cause the pond to refill.

Pictures were introduced in evidence which leaves little room to doubt that the high water mark was much above the little pool of water left in the pond.

The defendant, Mandrel Industries, Inc., denied all the allegations in the declaration in which the appellant charged that the seismograph crew acted for, and as agents of, the Defendant, Mandrel Industries, Inc. The appellant offered evidence in this record to show that (1) the name of Mandrel Industries, Inc., was printed on the side of the automobile and trucks operated by the seismograph crew; (2) the parties who contracted to do seismograph work on the appellant's property gave appellant the name and address of the defendant industry; (3) he was paid by Mandrel Industries, Inc.

Mandrel Industries, Inc., and Ray Geophysical Company tried to remedy the damages to the pond by returning to the pond to put cement plugs in the hole six to nine months later and to put chemical mud in the pond to fill the hole.

It is true that agency cannot be proven by statements of an alleged agent not made on the witness stand. City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660 (1962); Fanning v. C.I.T. Corporation, 187 Miss. 45, 192 So. 41 (1939); M. & V. R.R. Co. v. Cocke, 64 Miss. 713, 2 So. 495 (1887); 3 Am.Jur.2d Agency § 354 (1962); 3 C.J.S. Agency § 322c (1936). On the other hand, it is equally well settled that the relationship of agency may be shown by circumstantial evidence. Powell v. Masonite Corporation, 214 So.2d 469 (Miss.1968); Hobbs v. International Paper Company, 203 So.2d 488 (Miss.1967), and authorities cited; 3 Am.Jur.2d Agency § 351 (192).

It has been said:

Even though it is not full and satisfactory, or is only remotely relevant, any competent evidence which has a tendency to prove or disprove agency is admissible for that purpose, regardless of whether it is oral or written or is direct, indirect, or circumstantial. * * * (3 C.J.S. Agency § 322a, p. 273)

In the case of Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340 (1936), this Court held that 'a big M in a circle painted on the side of the truck,' coupled with evidence that defendant's truck with a similar emblem painted on the side was seen within a mile of the accident, was sufficient to make a jury issue as to the ownership of the truck and the relationship of master and servant, although such relationship was denied by the defendant truck owner.

The testimony in the record here with reference to the issue of agency not only shows that the trucks and automobile used by the seismograph crew had a big M painted on the sides of the vehicles, similar to the emblem on the card given to the land owner by the alleged permit agent, but that in accordance with the contract with the seismograph crew, Mandrel Industries, Inc., paid for the right to 'shoot' the property by its check.

We are of the opinion that the appellant overwhelmingly established the agency relationship between the seismograph crew and the defendant. Moreover, there is no testimony offered to the contrary.

The appellee contends that, even if the relationship of agency were sufficiently shown, the appellant could not recover a judgment because (1) there was no negligence shown on the part of the seismograph crew which caused damage to the appellant; (2) there is no proper proof of damages, and for that reason the order of the trial court in granting judgment notwithstanding the verdict should be affirmed. We do not agree with appellee's conclusions.

It is true that ordinarily suits of this nature must be predicated upon the negligence of the seismograph crew. Placid Oil Company v. Byrd,217 So.2d 17 (Miss.1969). In the instant case, however, the record shows on the issue of negligence that the land owner, at the time he contracted with the agent of the appellee, told him that he did not want the seismograph crew to 'go about my pond or in my permanent pasture. That's the only way I would let them go in there was not to go about my pond or shoot a hole in my permanent pasture.' The record also shows that the agent, Baylor, said: 'I won't unless I am forced to and if I am forced to what damage we do we will pay for it.' This evidence was not contradicted; it stands as a part of the limited access contract on which the appellee was permitted to go upon the land, if believed by the jury. However, notwithstanding the entreaty of the land owner, and in callous disregard of his land rights, the agents of appellee set off a charge of explosives within one hundred feet of the dam to appellant's pond. The explosion was so powerful that it jarred the ground and blew mud to the top of the trees and shook the window panes in the appellant's home three-quarters of a mile away.

In the instant case, however, it is not necessary to have proven negligence under the facts here shown because the uncontradicted testimony shows that the defendant had a limited permission to 'shoot holes' in his land for geophysical exploration. This agreement was violated and the defendant was a trespasser when it exploded dynamite near his pond. See Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175 So.2d 471 (1965); Magnolia Petroleum Co. v. McCollum, 211 Miss. 166, 51 So.2d 217 (1951); General Geophysical Co. v. Brown, 205 Miss. 189, 38 So.2d 703 (1949).

In order to prove the causal connection between the explosion and the injury to plaintiff's land and spring the appellant offered a witness, Mr. Joe Parker, who built the pond here involved. This witness had often used dynamite in destroying ponds (the 'hard pan'), to sink water and to cause the bed of streams to sink. He would have testified that in his opinion the exploding of dynamite in the deep hole below the dam where he observed the hole would have 'bust it.' The testimony of this witness was erroneously excluded upon the ground that he was not an expert.

In the case of Magnolia Petroleum Co. v. McCollum, 211 Miss. 166, 51 So.2d 217 (1951), this Court pointed out that the land owner introduced three experienced well drillers who testified that dynamite explosions of the kind testified to by the witnesses in that case were likely to cause water in nearby wells to take on a milky appearance and get muddy with sand. However, no objection was made to this evidence.

It has long been accepted as a general rule of evidence that the opinion testimony of one who has acquired special knowledge of a subject, either by study, training or practical experience, may impart to the jury such acquired knowledge so as to aid them in determining an issue with which the jury is not familiar. 20 Am.Jur. Evidence § 783, p. 656 (1939); 31 Am.Jur.2d Expert and Opinion Evidence § 26, p. 523 (1967).

We said in Glens Falls Insurance Co. v. Linwood Elevator, 241 Miss. 400, 130 So.2d 262 (1961):

* * * (A) witness need not be infallible or possess the highest degree of skill to testify as an expert. It is generally sufficient that the witness possess knowledge peculiar to the matter involved, not likely to be possessed by ordinary laymen. * * * (241 Miss. at 417, 130 So.2d at 268)

It is true that the qualification of an expert witness is addressed to the judicial discretion of the trial judge; Saucier v. Talkington, 251 Miss. 519, 170 So.2d 434 (1965); 31 Am.Jur.2d Expert and Opinion Evidence § 31, p. 530 (1967); but, even if the testimony of the expert witness had been properly excluded, there is sufficient evidence to submit to the jury the issue as to whether or not the explosion of dynamite below the dam caused the water in the pond to run out. The evidence shows that immediately after the explosion the water was running out of the hole where the explosion occurred; the water in the pond was muddy; the next morning the water level in the pond had fallen appreciably; fish were dead in the pond and...