Guilford Realty & Ins. Co. v. Blythe Bros. Co., 603

• Decision Date: 19 July 1963
• Docket Number: No. 603,603
• Citation: 131 S.E.2d 900,260 N.C. 69
• Court: North Carolina Supreme Court
• Parties: GUILFORD REALTY AND INSURANCE COMPANY, Plaintiff, v. BLYTHE BROTHERS COMPANY, a corporation, and Howard Construction Company, a corporation, individually and jointly, doing business as Blythe-Howard Companies, Defendants. J. Clarence COGGIN and wife, Betty A. Coggin, Plaintiffs, v. BLYTHE BROTHERS COMPANY, a corporation, and Howard Construction Company, a corporation, individually and jointly, doing business as Blythe-Howard Companies, Defendants.

Page 900

131 S.E.2d 900

260 N.C. 69

GUILFORD REALTY AND INSURANCE COMPANY, Plaintiff, v. BLYTHE BROTHERS COMPANY, a corporation, and Howard

Construction Company, a corporation, individually

and jointly, doing business as

Blythe-Howard Companies, Defendants.

J. Clarence COGGIN and wife, Betty A. Coggin, Plaintiffs, v. BLYTHE BROTHERS COMPANY, a corporation, and Howard

Construction Company, a corporation, individually

and jointly, doing business as

Blythe-Howard Companies, Defendants.

No. 603

Supreme Court of North Carolina.

July 19, 1963

Sapp & Sapp, Greensboro, for defendants-appellants.

Haworth, Riggs, Kuhn & Haworth and Schoch & Schoch, High Point, for plaintiffs-appellees.

BOBBITT, Justice.

This appeal presents two questions: 1. Does the complaint state facts sufficient to constitute a cause of action? 2. If so, do the facts alleged in the challenged portions of the answer constitute a defense to plaintiff's alleged cause of action?

Defendants, in their demurrer ore tenus, asserted in general terms that the complaint did not allege facts sufficient to constitute a cause of action. G.S. § 1-127(6). They did not, so far as the record shows, 'distinctly specify the grounds of objection to the complaint' and their demurrer 'might well have been disregarded' by the court below. Griffin v. Bank of Coleridge, 205 N.C. 253, 171 S.E. 71. G.S. § 1-128 applies to all demurrers, written or oral. Seawell v. Chas. Cole & Co., 194 N.C. 546, 140 S.E. 85; Adams v. Flora Macdonald College, 247 N.C. 648, 654, 101 S.E.2d 809. The court below did not disregard but overruled defendants' demurrer ore tenus. This Court granted certiorari to review this ruling. Consideration of defendants' demurrer ore tenus in this Court is limited to the ground on which the complaint is now challenged as insufficient by defendants' brief, namely, plaintiff's failure to allege that negligence on the part of defendant proximately caused plaintiff's damage.

In testing the sufficiency of the complaint, factual allegations deemed admitted by the demurrer ore tenus include the following: In order to dislodge portions of an extensive and deep stratum of rock, defendants elected to use certain explosive compounds and set off numerous explosions upon said stratum of rock in close proximity to plaintiff's dwelling house. These explosions produced violent concussions and vibrations of the earth around and beneath said stratum of rock. The said stratum of rock extended to and under plaintiff's dwelling house. The concussions and vibrations greatly damaged plaintiff's dwelling house and property.

The question is whether defendants, upon the facts alleged, would be liable for concussion and vibration damage to plaintiff's dwelling house and property proximately caused by their use of explosives in blasting.

It appears that in the prior decisions of this Court involving personal injuries or property damage caused by blasting (with the exception noted below) the plaintiff's action was based on negligence. This was true in Wiggins v. Hiawassee Valley R. Co., 171 N.C. 773, 89 S.E. 18, where this Court, in a per curiam opinion, said: 'We are of opinion that there is abundant proof of negligence (even if proof of negligence be necessary where such a trespass is committed upon the property and rights of another) to justify the submission of the issues to the jury.' In Cobb v. Atlantic Coast Line R. Co., 172 N.C. 58, 89 S.E. 807, the plaintiff's action was grounded on trespass rather than on negligence. This Court upheld an order continuing the restraining order to the final hearing. The decision was predicated upon the proposition that the invasion of the plaintiff's property by casting rocks and debris thereon by blasting constituted a trespass and the defendant was responsible for the damage caused thereby. Later, after trial, in Cobb v. Atlantic Coast Line R. Co., 175 N.C. 130, 95 S.E. 92, the plaintiff appealed from a judgment based on a verdict that he had been damaged 'by the trespasses of the defendants, as alleged' but that such trespasses were not committed 'wantonly and willfully.' In Asheville Const. Co. v. Southern Ry. Co., 4 Cir., 19 F.2d 32, Circuit Judge Parker said: 'There can be no doubt, we think, that where one, in the carrying on of blasting operations, throws rocks or debris on the property of another, he is liable for the damage done, on the principle that he is guilty of trespass, and quite irrespective of the question of his negligence.'

'Blasting is considered intrinsically dangerous; it is an ultrahazardous activity, at least in populated surroundings, or in the vicinity of dwelling places or places of business, since it requires the use of high explosives and since it is impossible to predict with certainty the extent or severity of its consequences.' 35 C.J.S. Explosives § 8 a.

'The decided weight of authority supports the view that where one explodes blasts on his own land and thereby throws rock, earth, or debris on the premises of his neighbor, he commits a trespass and is answerable for the damage caused, irrespective of whether the blasting is negligently done.' 22 Am.Jur., Explosions and Explosives § 53.

In Wallace v. A. H. Guion & Company, 237 S.C. 349, 117 S.E.2d 359, the complaint alleged concussion and vibration damage to the plaintiff's residence caused by the use of explosives by the defendant while engaged in excavating a ditch for a sewer line. The Supreme Court of South Carolina held the complaint was not demurrable on account of the plaintiff's failure to allege negligence. We quote the following from the opinion of Chief Justice Stukes:

'2 Harper and James, Torts, 812 et seq., sec. 14.6, contains excellent review of the authorities. The authors advocate the general rule which we follow. We quote briefly from their conclusion: 'Blasting operations are dangerous and must pay their own way. * * * The principle of strict or absolute liability for extrahazardous activity thus is the only sound rationalization.'

'This majority rule of liability without allegation and proof of negligence has been adopted by the American Law Institute, Restatement of Torts, Vol. III, sec. 519, in which it is said in sec. 520, at page 44, 'Blasting is ultrahazardous because high explosives are used and it is impossible to predict with certainty the extent or severity of its consequences.' We think that is the better reasoned rule and, supported as it is by the majority of the courts, we follow it. This requires affirmance of the order under appeal.'

'There is a conflict of authority as to whether one who, by blasting with powerful explosives, produces severe concussions or vibrations in surrounding earth and air and so materially damages buildings belonging to others is liable, irrespective of negligence on his part. According to one theory, since recovery is permitted for damage done by stones or dirt thrown upon one's premises by the force of an explosion upon adjoining premises, there is no valid reason why recovery should not be permitted for damage resulting to the same property from a concussion or vibration sent through the earth or the air by the same explosion. There is really as much a physical invasion of the property in one case as there is in the other; and the fact that the explosion causes stones or other debris to be thrown upon the land in one case, and in the other only operates by vibrations or concussions through the earth and air, is held to be immaterial.' 22 Am.Jur., Explosions and Explosives § 54. It is stated in 35 C.J.S. Explosives § 8 a that this is the rule 'more generally adopted.' See Annotation: 'Liability for property damage by concussion from blasting,' 20 A.L.R.2d 1372, 1375 et seq.

In Exner v. Sherman Power Const. Co., 2 Cir., 54 F.2d 510, 80 A.L.R. 686, in which the rule of absolute liability is held applicable to concussion and vibration damage as well as to damage caused by actual trespass, Circuit Judge Augustus N. Hand said: 'It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for the latter where the blasting itself was conducted at a lawful time and place and with due care. (Citations) Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and case and, in our opinion, is without logical basis.' Judge Hand then cites numerous decisions in which the distinction was rejected. The distinction is also rejected in Prosser on Torts, 2nd Ed., § 59, p. 336.

For a valuable discussion, with citations in accord with the majority rule of absolute liability and others in accord with the minority rule, see Comment Note by John Bryan Whitley appearing in Volume 40, page 640, of the North Carolina Law Review. In addition to Wallace v. A. H. Guion & Company, supra, recent decisions adopting the majority rule include Whitney v. Ralph Myers Contracting Corporation, W.Va., 118 S.E.2d 622, and Enos Coal Mining Company v. Schuchart, Ind., 188 N.E.2d 406.

In accord with the majority rule, which we adopt, defendants, upon the facts alleged in the complaint, and nothing else appearing, would be liable for concussion and vibration damage to plaintiff's dwelling and property proximately caused by their use of explosives in blasting. It may be inferred from plaintiff's factual allegations that the blasting was within 'an easement running near and upon plaintiff's property.' Plaintiff alleged that the...