Kinney v. Koopman

• Decision Date: 28 June 1897
• Parties: KINNEY v. KOOPMAN ET AL. RUDDER v. SAME.
• Court: Alabama Supreme Court

22 So. 593

116 Ala. 310

KINNEY v. KOOPMAN ET AL.

RUDDER v. SAME.

Supreme Court of Alabama

June 28, 1897

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Two actions, one by P. H. Kinney against Koopman & Gerdes and the other by Josephine Rudder against the same defendants, to recover damages for injuries to property caused by the explosion of gunpowder kept by defendants within the corporate limits of the town of Cullman. From a judgment in favor of plaintiffs, defendants appeal. Reversed and remanded.

Lea &amp McMaster, for appellants.

George H. Parker and J. M. Falkner, for appellees.

COLEMAN J.

The material questions are the same in both of these cases, and probably it would have been better had both been submitted together as one. Section 4093, Cr. Code 1886, reads as follows: "Any person, who keeps on hand, at any one time, within the limits of any incorporated city or town, for sale or for use, more than fifty pounds of gunpowder, must on conviction, be fined not less than one hundred dollars." In some of the counts of the complaint it is averred that the defendant kept stored within the corporate limits of the town of Cullman more than 50 pounds of gunpowder, which exploded, and caused the destruction of plaintiff's property; but neither of the counts show that the cause of action was founded upon the statute. Other counts aver the storage of just 50 pounds, while in others the averment is that large quantities and dangerous quantities of dynamite and gunpowder were so kept and stored. In some of the counts it is alleged that defendant negligently kept large quantities of dynamite and gunpowder in a wooden building in the town of Cullman, or near other buildings, etc. The assignments of error raise the question of the common-law liability of a person who keeps in store in a town or city, large quantities of explosive material, such as dynamite and gunpowder, for damages resulting from its explosion, and also his liability for damages resulting from a violation of the statute. We have no statute declaring the storage of gunpowder or explosives in cities or populous places to be a nuisance, and the question must be determined by common-law principles. At common law a public nuisance signified "anything that worketh hurt, inconvenience, or damage to the king's subjects." 1 Russ. Crimes, § 317; 3 Bl. Comm. p. 216; 2 Bouv. Inst. p. 503; 2 Bouv. Law Dict. p. 248; 2 Hawk. P. C.; Ferguson v. City of Selma, 43 Ala. 398. Probably as comprehensive and correct a definition as any may be found in 16 Am. & Eng. Enc. Law, p. 293, where it is said: "The term 'nuisance' in legal phraseology is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage." It will be observed that this definition is broad enough to embrace public and private nuisances, and such as are nuisances per se, as well as those which become such by reason of the manner and character or the place of the use. The distinction between nuisances which are such per se and those uses which become nuisances by reason of the manner and character of the use or the place have always been recognized in well-considered cases. Ogletree v. McQuaggs, 67 Ala. 580; Rouse v. Martin, 75 Ala. 510; Kingsbury v. Flowers, 65 Ala. 479; St. James' Church v. Arrington, 36 Ala. 546; English v. Motor Co., 95 Ala. 259, 10 So. 134. The distinction is clearly stated in the case of Earl of Ripon v. Hobart, 1 Coop. t. Brough. 333, 3 Mylne & K. 169, by Lord Brougham: "If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief without waiting for the result of a trial. But when the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, then the court will refuse to interfere." This construction is in accordance with the common law that "a nuisance per se is that which worketh hurt," or, as defined in the Encyclopedia, "working such an effect upon the right of another that the law will presume a consequent damage." Unless the thing of itself, because of its inherent qualities, without complement, is productive of injury, or by reason of the manner of its use or exposure threatens or is dangerous to life or property, it cannot be said to be a nuisance per se at common law. If an occupation be lawful, and by care and precaution it can be conducted without danger or inconvenience to another, the occupation is not per se a nuisance; and, if such an occupation or business becomes a nuisance, it is because of a want of proper care or precaution. In 7 Am. & Eng. Enc. Law, p. 517, it is said: "As a general rule, the true and only ground of liability for damage caused by an explosion occurring while the party sought to be charged is in the lawful possession or use of the thing exploding, is the want of ordinary care and skill." In the note to this page it is said: "'Ordinary care and skill' is a relative term, exacting a degree of vigilance and technical knowledge in proportion to the dangerous character of the substance dealt with, and requiring that a person shall take for the safety of others whatever precautions the nature of his employment suggest;" citing Thomp. Neg. c. 1, notes 11-13. The question of care and diligence does not arise in a case of damages resulting from a nuisance per se, because the thing itself was unlawful. Courts have not always been careful to maintain the difference in cases where suit was brought to recover damages resulting from a cause that is a nuisance per se and damages resulting from the manner of the use of the thing. The rule of "sic utere" requires a person to so use his own as not to injure another, and he is responsible for the failure to do so whether the "thing" used be a nuisance per se or made so by its use. The reasoning is not sound that concludes "a thing" to be a nuisance per se because in its use injury has resulted. The blasting of rocks is not per se unlawful. But when a person undertakes to blast rocks, whether in a city or in the country, he may become responsible for the damage inflicted upon the person or property of others; this not solely because of the explosive material used to effect the blasting, but because of the damage resulting from the means used and place and manner of using. A person who would cut a tree down with an ax, standing on his own right of way, so as to fall upon the house of another, would be responsible, and equally liable as if a huge rock had been thrown by blasting upon the house. So a city or person may be liable in damages for a nuisance by causing water to leave its natural course, and overflow the lands of another; but this does not argue that water per se is a nuisance, but only that the manner of its use may become such. The result does not conclusively determine that the means or instrument used was dangerous, but may show that on account of the place and the manner of the use it was such.

It has been frequently held that the law as to explosives is the same as that which applies to keeping dangerous and vicious animals. A dog, however vicious, may be secured so as to render it absolutely harmless. A dog thus kept on one's own premises is not a nuisance per se, because it cannot work a hurt to another. If, however, the dog escapes, and upon the highway or upon the private premises of another commits an injury, the owner is liable. Every menagerie or zoo having dangerous and wild animals for exhibition, however securely caged, would be guilty of a nuisance per se if the mere having such animals in cities or on the highway constituted a nuisance. Steam is dangerous, and at times, suddenly, without warning, there are explosions from steam, causing destruction of property and death. If the fact that explosions do occur, causing damage, was conclusive that steam power was a nuisance per se, manufacturing in towns and near other people's premises must cease. Under such a rule, all steamboating and railroading would be nuisances per se. Is gunpowder kept in large quantities in public places dangerous, and per se a nuisance, without regard to the manner of its use or keeping? When we consider the vast number of government magazines in this country and throughout the world, its daily transportation by every known power of conveyance, its daily use by millions of persons in war, or for blasting, or for amusement, with scarcely a single well-authenticated instance of spontaneous combustion, it cannot be said that gunpowder per se is dangerous. The difference between a public nuisance and a private nuisance does not consist in any difference in the nature or character of the thing itself. It is public because of the danger to the public. It is private only because the individual, as distinguished from the public, has been or may be injured. Public nuisances are indictable. Private nuisances are actionable, either for their abatement, or for damages, or both. If the storing of gunpowder so near another's dwelling in the country, where there is no other building, that an explosion would damage the owner, be not a private nuisance per se, the storing of the powder in a city will not be a public nuisance per se. The decisions of the supreme or appellate courts of different states are not uniform in their statements of the law. We will refer to a few of the leading cases.

The case of Laflin v. Tearney, 131 Ill. 322, 23 N.E. 389 (...