Fontenot v. Magnolia Petroleum Co.

• Decision Date: 25 April 1955
• Docket Number: No. 41552,41552
• Citation: 227 La. 866,80 So.2d 845
• Parties: Cllfford E. FONTENOT v. MAGNOLIA PETROLEUM CO. et al. Marvin YOUNG, Sr. v. MAGNOLIA PETROLEUM CO. et al.
• Court: Louisiana Supreme Court

Page 845

80 So.2d 845

227 La. 866

Cllfford E. FONTENOT v. MAGNOLIA PETROLEUM CO. et al.

Marvin YOUNG, Sr. v. MAGNOLIA PETROLEUM CO. et al.

No. 41552.

Supreme Court of Louisiana.

April 25, 1955.

Rehearing Denied May 23, 1955.

Isom J. Guillory, Jr., Isom J. Guillory, Eunice, for plaintiffs-appellants.

Liskow & Lewis, Lake Charles, Brewer, Matthews, Nowlin & Macfarlane, San Antonio, Tex., for defendants-appellees.

SIMON, Justice.

Two separate suits were filed against the defendants, Magnolia Petroleum Co. and Petty Geographical Engineering Co., by plaintiffs, Clifford E. Fontenot and Marvin Young, Sr., to recover compensation for damages to their respective residences alleged to have resulted from the negligence of defendants in the use of explosives while conducting geophysical observations in the vicinity of plaintiffs' homes. In the alternative, plaintiffs allege liability of the defendants irrespective of the lack of fault or negligence in the use of these explosives.

Both suits were consolidated for purposes of trial and by agreement of counsel were submitted for decision on the merits at the same time and on the same evidence.

The trial court rendered separate judgments in favor of the defendants, dismissing plaintiffs' respective demands; and the consolidated cases are now before us on appeal. These consolidated cases are filed under one docket number of this Court, and we shall perforce dispose of the issues presented in one opinion but with separate applicable decrees.

The respective residences of plaintiffs are situated in a rural section near Eunice, St. Landry Parish. The home of plaintiff Fontenot was built in the early months of 1946, and that of plaintiff Young in 1947. For all practical purposes both homes were relatively new, of substantial construction, and of modern design and conveniences.

It is alleged that vibrations and concussions radiating in the soil from the point of the explosions conducted by defendants on July 27, 1948, resulted in the detailed damages complained of. The damages alleged by both plaintiffs bear similar characteristics, consisting mainly of cracks in the walls, ceilings and areas connected with windows and doors, and broken concrete foundations and porch floors. Plaintiff Fontenot claims property damages in the sum of $2,045, $505 for disturbances and the invasion of the privacy of his home, and $500 for future damages as a result of the inconvenience and displacement anticipated when and if his home is repaired, aggregating the sum of $3,050. Plaintiff Young claims property damage in the sum of $3,500, $650 for disturbances and the invasion of the privacy of his home, and $500 for future damages as a result of the inconvenience and displacement anticipated when and if his home is repaired, aggregating the sum of $4,650.

The defendants admit that on July 27, 1948, the Petty Geographical Engineering Co., acting under contract with its codefendant, Magnolia Petroleum Co., conducted geophysical operations in exploring for oil and gas within the vicinity of the homes of plaintiffs; that while engaged in this operation they exploded 10-pound charges of Nitramon 'S' at surface depths of 66 feet to 70 feet and at distances of 860 feet to 1,000 feet from plaintiffs' residences. It appears that plaintiff Fontenot had denied the defendants the privilege of entering upon his residence property to conduct these geophysical operations, and that the explosions in relation to his home were conducted on adjoining property; whereas, plaintiff Young orally agreed to allow defendants the right of entry upon his property.

The truth and accuracy of the property damages claimed by plaintiffs to their respective residences are not challenged by defendants, and no attempt was made to disprove these facts. However, defendants strenuously assert that the defective and damaged condition of plaintiffs' homes was not caused through the geophysical operations as conducted by them but resulted from a natural settlement of the earth and poor or defective construction workmanship.

In support of their respective claims, plaintiffs and their wives testified that immediately prior to these operations the defects herein complained of were nonexistent. Plaintiff Young testified that on the day of the explosions he was at his home and observed the preparatory mechanics conducted by the defendants; that when the shots were fired he experienced a feeling as if 'a wave was going under me' and which he compared to 'standing on a roller of some kind'. He did not inspect his home on that day, having no plausible reason for so doing, and it was only on the following day that his wife called his attention to ants having invaded the kitchen. On the second day following the explosions, while spraying ant poison around his premises, he thereupon discovered the damages complained of.

Mrs. Young testified that on the day in question several explosions were fired in the vicinity of their home, with resulting vibrations, and that shortly after the noon hour a louder blast was of such severity as to cause violent tremors in the floors and windows. These consecutive events, causing apprehension of impending danger, prompted her to leave her home in search of neighborly comfort in the home of Mrs. Fontenot.

Plaintiff Fontenot was absent from his home on the day in question but learned of these activities upon his return that evening. Upon being informed two days later of the complaints of plaintiff Young, Fontenot inspected his own premises and discovered the then existing damages which he testified did not exist prior to these explosions.

Mrs. Fontenot testified that on the day in question, the nearby explosions caused much rattling of the window blinds; that she found cracks and other detailed defects as she house-cleaned on days subsequent, and which were non-existent prior to the date of the explosions.

One Herbert M. Guillory, a lumber contractor and the Vice-President and Executive Manager of the G. J. Deville Lumber Co., Inc., Eunice Branch, estimated the damages complained of and testified from his personal observation of the nature of the damages. He concluded that they were the result of either a large area of soil having been 'washed out' beneath the foundations or the foundations themselves having been subjected to some violent shock or concussion.

One Clayton Joseph D'Avy, Jr., an architect, examined these homes and testified that from his scientific knowledge the general cracking complained of by plaintiffs and the actual physical displacement of substantial 'masses' of concrete in the foundation, floors and porches could not have been caused by natural settlement but were clearly, in his opinion, the result of sharp and otherwise rapid vibrations of the soil.

Other witnesses testified on behalf of plaintiffs to the effect that these homes were of sound construction, of good and substantial workmanship and of materials of unquestioned worthiness, particularly the concrete poured for their foundations and porches, and which were generally accepted as more than adequate for many future years of security and comfortable occupancy.

Defendants presented evidence to show that their use of explosives in these geophysical operations was reasonable and in accord with the usual, customary and approved methods of conducting such explorations, and that therefore they cannot be held guilty of any fault or negligent act giving rise to a cause of action in favor of plaintiffs. Their explosive experts testified that, considering the distances separating the points of the explosions from the homes of plaintiffs, it would have been scientifically impossible for the blast of a 10-pound explosive used to have produced vibrations or concussions sufficient to cause the damages complained of. These experts support their conclusions with a detailed and scientific discussion of theories and of experiments made by them during the month of September, 1948, particularly in connection with the use of the 'Falling Pin Seismometer', on which was recorded the effect of experimental explosions allegedly fired under the same conditions as existed in relation to the ones complained of by plaintiffs. They all agree that the cause of the defective condition of plaintiffs' homes can be attributed to no cause other than that of natural earth settlement or the use of inferior material and poor workmanship in their construction.

In disposing of questions of this character, we are mindful of two important considerations: First, to give the owner of property the...