Marigold Coal, Inc. v. Thames, 6 Div. 530

• Citation: 149 So.2d 276,274 Ala. 421
• Decision Date: 29 November 1962
• Docket Number: 6 Div. 530
• Parties: MARIGOLD COAL, INCORPORATED, v. Ruby W. THAMES.
• Court: Alabama Supreme Court

Page 276

149 So.2d 276

274 Ala. 421

MARIGOLD COAL, INCORPORATED, v. Ruby W. THAMES.

6 Div. 530.

Supreme Court of Alabama.

Nov. 29, 1962.

Rehearing Denied Feb. 7, 1963.

Wiggins & Wiggins, Jasper, for appellant.

Elliott & Jackson, Jasper, for appellee.

PER CURIAM.

Plaintiff's complaint, containing five amended counts, two based on wanton conduct and three on negligence of the defendant (appellant here), claims of the defendant $5,000.00 in damages alleged to have been the proximate result of concussions from the use of explosives by defendant in blasting operations preparatory to strip mining of coal.

The complaint avers structural damages to plaintiff's dwelling house and garage; also marked decrease of water supply in her well to the point of inadequacy; and by amendment to the original counts it alleges that 'plaintiff was frightened, caused to suffer mental anguish, and was annoyed and discomforted in the use and enjoyment of her property as a home of rest and quietude.'

Defendant addressed a demurrer, with numerous and diverse grounds, to each count. The trial judge overruled the demurrers. Appellant here assigns error on such rulings. We will review only those grounds of demurrer which are adequately argued by appellant in its brief. Ala. Digest, Appeal and Error, k 1078(3); Perkins Oil Company of Delaware v. Davis, 228 Ala. 190, 153 So. 417(2).

Appellant argues that the ground of demurrer which charges the complaint with vagueness, indefiniteness and incompleteness and fails to inform appellee with certainty as to what it is called on to defend, has merit. Our observation is that this ground is too general, as is the ground that the complaint does not state a cause of action. The trial court will not be put in error on these grounds for its action in overruling the demurrer. Title 7, Section 236, Code of Alabama, 1940, as Recompiled in 1958; Bright v. Wynn, 210 Ala. 194, 97 So. 689(2).

Ground 3 of the demurrer, included in appellant's argument, asserts that 'the complaint as amended and the counts therein constitute two separate causes of action under claim for damages to real property and a claim for damages to the person of the plaintiff.' This ground in our opinion is without legal efficacy. Ritter v. Gibson, 217 Ala. 304, 116 So. 158(10). This case approved a complaint which alleged that plaintiff's mule was killed and he suffered personal injuries in a collision with an automobile. The allegations were in one count.

Ground C of the demurrer asserts that the complaint and each count fail to set forth any facts and things constituting wanton or willful conduct on the part of the defendant. This ground lacks certainty and specificity, and for this reason is vulnerably deficient. Bright v. Wynn, supra. Likewise, this authority condemns Grounds A, B, C and D. The latter ground challenges the complaint, 'for that said count fails to show or aver any facts, showing the mode, manner, means or agency, by which the plaintiff suffered any injuries to property or person of plaintiff.' Assuming this latter ground is certain and specific, we think that the complaint meets this challenge. It alleges that the damages proximately resulted following concussions from the explosions of dynamite and other explosives in alleged mining operations.

Other grounds of demurrer were either inadequately argued in appellant's brief or were waived by no argument at all. Perkins Oil Company of Delaware v. Davis, supra. This court is under no duty to cast about in the brief in an effort, possibly futile, to ascertain the grounds of demurrer to which the argument is addressed. We are inclined to believe that appellant argued with seriousness and certainty all the grounds of demurrer which it concluded had merit.

We find no error in the trial court permitting plaintiff's witness, Ray McLendon, after qualifying as an expert in coal mining with the use of explosives--dynamite and ammonium nitrate--, to testify over the objection of defendant, that in his judgment the blasting done by the defendant, as alleged in the complaint, was heavier than reasonably necessary to remove the rock and dirt 'down there.' No ground that this witness had not qualified as an expert in the use of dynamite and ammonium nitrate in strip mining appears in the objection. This court, in reviewing rulings on evidence, will consider only the grounds of objection which were assigned. Bates v. Bank of Moulton, 226 Ala. 679, 148 So. 150(2). This witness had previously testified that he was familiar with the place where defendant was blasting between February 24, 1958, and February 24, 1959; that he was at home when the blasts would go off and that they were heavy. It is our opinion that the objection on the grounds argued was properly overruled.

Assignment of error 44 is addressed to the adverse ruling by the trial court to defendant's objection to plaintiff's question to the witness McLendon: 'State whether or not the dirt and rock in this strip mining operation could have been removed with less heavy shots than the blasting done by the defendant corporation, judging by what you know about this operation and the jars and vibrations you experienced that took place?'

This witness had previously testified, as shown in the preceding paragraph, to his familiarity with the blasting and the location and had qualified as an expert in the use of dynamite and ammonium nitrate in strip mining. The weight of his testimony in the light of his experience and his knowledge of the operations by the defendant at the time and place at issue was for the jury. In the case of Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641, 64 So. 547, the following question was asked and held proper over the objection of defendant: 'I will ask you to state whether or not, in your judgment, the blasting that was done by defendant * * * was reasonably necessary to remove solid rock?' Also the following question in the same case to the same witness was held proper: 'I will ask you to state if solid rock can be successfully removed with less severe blast than the blasting of this defendant, judgment from what you saw, and the jar and vibrations you experienced?' The objection of defendant here was properly overruled.

We do not think that a second question, 'Mr. McLendon, if the blasts that occurred during the year we have been talking about were set off in this strip pit jarred windows out of houses around it, shook houses and cracked foundations and chimneys around it, whether or not that would be an indication in your opinion that the charge was excessive? and, also, a third question to the same witness, 'I will ask you further if what you have just testified about, if that was not an indication that the blasting was improperly done?', violated any of the grounds of objection which defendant assigned to the questions.

A ground of objection to which we should address judicial observations was that the above questions called for unauthorized conclusions. This witness, in the opinion of the trial judge, had qualified as an expert in this particular field of operation by the defendant. This court has held that an expert witness, qualified to that end, may give his opinion as to the safety or danger of a place, or an appliance, when the issue is involved on the trial. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604, 607(11). Admission of such evidence is limited by the rule that an expert witness may not testify to a matter of common knowledge. Alabama Great Southern Railroad Company v. Bishop, 265 Ala. 118, 89 So.2d 738(11), 64 A.L.R.2d 1190. We do not think the evidence of this witness in giving his opinion in response to these questions was subject to this limitation. Therefore, the answers did not invade the province of the jury.

Appellant complains under Assignment of Error 39 that the trial court erred to reverse in permitting plaintiff's witness to testify, over his objection, that the reasonable cash market value of plaintiff's well immediately before it went dry on February 24, 1958, was $160.00. The objection was that the question called for an answer that was incompetent, irrelevant, immaterial and illegal, and was not the proper way to prove damages. Damages to the well was claimed in the complaint. The objection was property overruled. Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708(10).

The report of the mine inspector for the State of Alabama, who had testified that he only checked defendant's method of handling, transporting and storing explosives, and that he didn't observe any explosion on the surface of the ground, was not material or relevant to the issues before the court and was properly excluded. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216, 217(1).

We hold the exception taken by appellant to the trial court's oral charge to the jury that if they should find the defendant guilty of wanton conduct under counts 1 and 2 of the complaint, they could, in addition to actual or compensatory damages, assess a fine or penalty against the defendant, is without merit. The excerpt of the charge to which exception was taken correctly states the prerogative of the jury. The evidence adduced and admitted made an issue of fact for the jury to decide as to the existence vel non of wantonness as alleged in the complaint. We will delineate some of the evidence later in this opinion. Damages awarded for such conduct, in addition to compensatory or nominal damages, are punitive and imposed as a punishment. Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74(11-15); Birmingham Ry., Light & Power Co. v. Murphy, 2 Ala.App. 588, 56 So. 817(2); Payne v. Smitherman, 206 Ala. 591, 91 So. 575(3); Davis v. Smitherman, 209 Ala. 244, 96 So. 208(18-19).

Assignment of Error 63 charges the trial court with error in giving plaintiff's written charge 6 as follows: 'The court charges the jury that if they are reasonably satisfied from the evidence that the defendant had...