Garden of the Gods Village v. Hellman

• Decision Date: 05 March 1956
• Docket Number: No. 17646,17646
• Citation: 294 P.2d 597,133 Colo. 286
• Parties: GARDEN OF THE GODS VILLAGE, Inc., a Colorado corporation, Plaintiff in Error, v. Eric HELLMAN and Verna Hellman, Defendants in Error.
• Court: Colorado Supreme Court

Page 597

294 P.2d 597

133 Colo. 286

GARDEN OF THE GODS VILLAGE, Inc., a Colorado corporation, Plaintiff in Error, v. Eric HELLMAN and Verna Hellman, Defendants in Error.

No. 17646.

Supreme Court of Colorado, En Banc.

March 5, 1956.

James F. Quine, Phelps, Fonda & Hays, Pueblo, for plaintiff in error.

Bennett & Heinicke, Colorado Springs, for defendant in error.

KNAUSS, Justice.

Defendants in error, hereinafter referred to as plaintiffs, brought this action against the plaintiff in error, Garden of the Gods Village, Inc., a corporation (hereinafter referred to as the corporation), and Leo Heyn, John Frazee, Frazee Brothers, Contractors, alleging that defendants conducted, or caused to be conducted, blasting operations on the property of the corporation at Manitou Springs, Colorado, which resulted in damage to the real property of plaintiffs, including a pottery kiln and a pyrometer, an instrument necessary in the proper operation of the kiln. Plaintiffs further alleged that said blasting operations were conducted wantonly and recklessly in disregard of plaintiffs' rights and feelings.

Leo Heyn, named as a defendant in the action, was never served and departed this life prior to trial of the action. John Frazee and Frazee Brothers, Contractors, by answer denied all of the allegations of plaintiffs' complaint. The corporation, by answer, denied all of the allegations of the complaint and alleged that the damage, if any, sustained by plaintiffs was occasioned or caused by individuals, or firms, over whom the Garden of the Gods Village, Inc., had no control.

Approximately eight months after the instant case was filed, defendants in error filed a similar action against Paul Nixon and Philip Nixon. Defendants in the second action filed their answer admitting that they did some blasting on the property of the corporation under the employment of Leo Heyn and John Frazee and denied all other allegations in the complaint filed against them.

At the pre-trial conference held in these cases they were ordered consolidated for the purpose of trial to a jury. The trial resulted in a verdict in favor of plaintiffs against the corporation in the sum of $9,153.65 actual damages and $100 exemplary damages. No verdict was rendered against Paul Nixon and Philip Nixon, or against John Frazee and Frazee Brothers, Contractors. Judgment was entered upon the verdict against the corporation, and it is here on writ of error to review the judgment against it.

The land in question is in the red sandstone area on the southern boundary of the Garden of the Gods and on the east side of Beckers Lane, a street running north and south in the City of Manitou Springs. Plaintiffs' property is located on the west side of Beckers Lane and the improvements consist of a long cinder block building, constructed in 1948 and enlarged in 1950. This structure serves as a residence of plaintiffs and as a pottery factory known as the Garden of the Gods Pottery. In the building is the plaintiffs' kiln in which the pottery items are fired. The heat in the kiln was controlled by a pyrometer, a delicate instrument necessary to the proper operation of the kiln.

Heyn, who was president of the defendant corporation, owned and controlled practically all of its issued stock and was the only individual, who on behalf of the corporation directed and supervised the work incident to the improvement of the land in Garden of the Gods Village Addition No. 1. The corporation was engaged in developing its real estate for the purpose of subdividing it into lots to be sold to the public. In order to accomplish this objective on the rocky land it was necessary that certain leveling operations be carried out. The Frazee Brothers, Contractors, were hired to do this leveling work under the direction of Heyn. Some of the rocks were so large that they could not be removed without blasting. At the instance of Heyn, Frazee Brothers contacted Paul Nixon, and Philip Nixon to ascertain if they would undertake the blasting operations. It appears that the Nixon Brothers were experienced and qualified operators in the blasting field. The Nixons contacted Mr. Heyn and shortly thereafter commenced the work necessary to blasting on the corporation's property. On July 10, 1953 the first charges were exploded, and during the ensuing week several other charges were exploded, which, according to the plaintiffs, caused the damage complained of. Plaintiffs' testimony disclosed that one of the blasts was exceedingly heavy and rocks, stones and debris dislodged thereby landed on the roof of their property, one of such rocks penetrating the roofing material and lumber which composed the roof. Plaintiffs' testimony further disclosed that the temperatures in the kiln were controlled by a pyrometer and the kiln and pyrometer were damaged as a result of the blasting operations conducted on the property of the corporation. The walls of plaintiffs' building were cracked; leaks occurred in the roof of the building and for a considerable period of time plaintiffs were unable to conduct their business because of the damage to the pyrometer and kiln.

It appears from the record that prior to July 10, 1953 Mr. Heyn had applied to the city clerk of Manitou Springs, Colorado for a permit to conduct blasting operations on the corporation's property, and on July 10, 1953 he sent one of the Frazee Brothers to the office of said city clerk to obtain the permit. The city clerk was unwilling to issue the permit without the personal presence of Mr. Heyn and caused it to be issued to Frazee Brothers, Contractors, and Frazee delivered the permit to Mr. Heyn. Prior to that time and at the instance of Mr. Heyn, John Frazee approached Paul Nixon to inquire whether or not he would be willing to undertake the blasting operations on the corporation's property. As a result Nixon contacted Mr. Heyn; agreed to undertake the blasting and was paid by the hour for his work. There was no general contractor on the job and Mr. Heyn was present during most of the blasting operations, supervised the work and directed Nixon where to place the shot holes. It appears that Mr. Nixon indicated that something over a hundred holes should be drilled and smaller charges of blasting material placed in each of them, but Mr. Heyn was unwilling to comply with this suggestion, because 'he did not feel like putting that much into these lots--that they wasn't worth it'. Mr. Nixon, according to the record, explained to Mr. Heyn that this was a safety measure and that to put in a large number of holes would result in smaller particles of rock and other materials, which could be more easily gathered and removed after the blasting was completed.

It is contended by counsel for the corporation that the court erred in giving instruction No. 7, and that instruction No. 12 is in conflict with No. 7. It is also contended that the trial court erred in giving instruction No. 6, which authorized the jury to return a verdict awarding exemplary damages. It is also contended that the trial court erred in overruling the corporation's motion for a directed verdict in its favor because (a) no negligence was shown, and (b) defendant acted thru an independent contractor.

Other claimed errors are specified, but we find them to be without merit.

Instruction No. 7 given by the court, reads as follows:

'If you find that one or more of the defendants conducted or caused to be conducted blasting operations on the premises of the Garden of the Gods Village, Inc. and that by reason of such blasting operations the plaintiffs were injured by the throwing of dirt, rock or stones upon their premises and by concussion or vibration from explosions, then you should find in favor of the plaintiffs and against such defendants as may have conducted or caused to be conducted such blasting whether it was done negligently or not and without regard to the proportion of damages caused by dirt, rock or stone on one hand and concussion or vibration on the other. If you find that such blasting was done, but did not involve the throwing of any dirt, rock or stones on plaintiffs' premises, then in order to find for the plaintiffs, you must also find that the blasting was done negligently.'

Instruction No. 12 as given by the court reads as follows:

'You are instructed that if you should find in favor of the plaintiffs that the damages you award to them must be a direct and proximate cause of any negligence on the part of the defendants or one or more of them which the plaintiffs have proved by a preponderance of the evidence and you are further instructed that you may not speculate as to any damages but any damages awarded must have been proved by a preponderance of the evidence.'

Counsel for the corporation contend that the plaintiffs' claim for damages had to be based on negligence, hence it is argued that instructions No. 7 and No. 12 are inconsistent and...