Drumm v. Simer
| Decision Date | 25 April 1949 |
| Docket Number | 5047 |
| Citation | 68 Ariz. 319,205 P.2d 592 |
| Parties | DRUMM v. SIMER |
| Court | Arizona Supreme Court |
Appeal from Superior Court, Navajo County; Don T. Udall, Judge.
Reversed.
Guy Axline, of Holbrook, and Stahl & Murphy, of Phoenix, for appellant.
C. D McCauley, of Winslow, for appellee.
LaPrade, C. J., not participating.
De Concini, Justice.
Appellee Clay Simer, plaintiff below, brought this action against A. B. Drumm, doing business as Silver State Construction Co. The case was tried to the court without the aid of a jury, at the conclusion of which both parties requested findings of fact and such findings were made and judgment entered for plaintiff for the sum of $ 607.50, from which defendant appeals.
The facts are as follows: Plaintiff owned a dwelling in the city of Winslow which was completed in May, 1942. In 1944 defendant entered into a contract with the Civil Aeronautics Authority an agency of the United States Government, to do certain construction work at the Window Airport as a war emergency measure. While in the process of construction defendant caused a great deal of dynamite blasting to be done during the months of July to December, 1944. Plaintiff alleged, and his wife testified, that on October 9, 1944, at about 5:00 p. m. defendant caused a blast to be set off that shook plaintiff's house, causing cracks in the plaster, the foundation, and the garage floor. Plaintiff alleged two specific acts of negligence, to wit: "by the acts of simultaneously setting off an excessive number of explosions (and) an excessive amount of explosive material in such close proximity to the City of Winslow and plaintiff's premises." The italicized allegation was added at the close of plaintiff's case as a trial amendment.
Plaintiff's house was approximately one and one-quarter miles north of defendant's nearest blasting operation and about two and one-half miles north of his other blasting work. The evidence conclusively established that no damage was done to nearby buildings such as the airport, hangar and terminals, the Country Club building, and some Santa Fe Railway buildings about one-half mile from the blasting. These buildings were all on a direct air-line between plaintiff's dwelling and the place where the blasting was carried on.
There was no evidence of the alleged negligence on the part of the defendant. The court did find:
Plaintiff relies on an inference of negligence against defendant as the result of that "finding." Such a theory is not tenable because there was no evidence that such lack of investigation constituted negligence. Actually the evidence was to the contrary. Had such an investigation been made the only reasonable conclusion would have been that because of the one and one-quarter mile distance between plaintiff's house and defendant's closest blasting operation, and the conditions of the underground rock ledges in that vicinity, no damages would result to plaintiff's house from defendant's blasting.
The trial court did not and could not find any negligence upon the part of defendant. An omission of the findings to cover a particular fact or issue is to be deemed a finding on that fact or issue against the party having the burden of proof. Arizona Commercial Min. Co. v. Iron Cap Copper Co., 29 Ariz. 23, 239 P. 290; 64 C.J. 1236, section 1079. Assuming, however, that the court below gave plaintiff judgment on the inference of negligence because of his "finding" No. IV, supra, such an inference of negligence cannot stand because the facts do not bear it out as heretofore mentioned, and for the further reason that such a "finding" is not warranted in law. Plaintiff sued on only two specific acts of negligence, to wit: "* * * by the acts of simultaneously setting off an excessive number of explosions (and) an excessive amount of explosive material * * *."
Plaintiff could not recover unless there was proof of one or both of these alleged negligent acts. City of Phoenix v. Green, 49 Ariz. 376, 66 P.2d 1041; Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168; Southwest Cotton Co. v. Pope, 25 Ariz. 364, 218 P. 152.
We have heretofore held "No principle is better settled than that a party is not entitled to a judgment on a finding of facts different from, or contradictory of, the theory of the case, or the facts set up in the complaint or answer." Kingsbury v. Christy, 21...
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McCauley's Estate, In re
...no issue of fact between the parties as to that matter and the court cannot raise an issue of fact where there is none. Drumm v. Simer, 68 Ariz. 319, 205 P.2d 592 (1949) did not involve a granting by the court of a motion to amend to conform to Proponent's fifth and final assignment of erro......
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