Monroe v. Razor Const. Co., 50288

• Citation: 252 Iowa 1249,110 N.W.2d 250
• Decision Date: 15 August 1961
• Docket Number: No. 50288,50288
• Parties: DeForest H. MONROE and Mary Monroe, Appellees, v. RAZOR CONSTRUCTION COMPANY, a Corporation, Appellant.
• Court: United States State Supreme Court of Iowa

Page 250

110 N.W.2d 250

252 Iowa 1249

DeForest H. MONROE and Mary Monroe, Appellees, v. RAZOR CONSTRUCTION COMPANY, a Corporation, Appellant.

No. 50288.

Supreme Court of Iowa.

Aug. 15, 1961.

Seymore M. Raben, Davenport, for appellant.

Alan H. Mayer and E. C. Halbach, Clinton, for appellees.

THOMPSON, Justice.

Plaintiffs' action is brought in two counts. It seeks to recover damages alleged to have been sustained because of defendant's use of explosives in excavating, which injured plaintiffs' residence property. The first court in based on the doctrine of 'liability without fault', and the second on general negligence, or res ipsa loquitur. The defendant answered the first count by alleging that it used the explosives in performing a contract with the Clinton Independent School District, and in accordance with plans and specifications furnished by the architect for the District. Thereby, the answer asserts, the defendant became entitled to the protection of the governmental immunity of the District. Count II was answered by denying that the doctrine of res ipsa loquitur is applicable to the situation presented. The answer to each count also contained certain general denials. The plaintiffs filed their reply, in which they deny that the defendant was authorized by any plans or specifications or contract to use powerful explosives in the manner employed. The defendant asked that the applicability of res ipsa loquitur be determined by the court under R. C. P. 105, 58 I.C.A.; and the court thereupon refused to strike it from the case and in effect held it applicable.

The case then proceeded to trial, the court sitting as the sole trier of the facts as well as of the law. It returned its judgment for the plaintiffs, holding that liability was established on both counts of the petition. From this judgment the defendant appeals.

In the year 1958 the defendant, found by the trial court to be an independent contractor, was engaged in building a gymnasium and swimming pool for the Clinton Independent School District, hereafter known as the district. In so doing, it was necessary to excavate by blasting with dynamite. There is evidence that the damage to plaintiffs' property was caused by the blasting, the trial court so found, and no error is predicated on this finding. There was also evidence that the method of blasting which the defendant claims it used was approved by the architect for the school; and the court found, adversely to the contention of plaintiffs at this point, that this approval amounted to an inclusion of the amounts and patterns of dynamiting in the plans and specifications. Under the well settled rule, the finding of the court on these points was equivalent to a jury verdict and, being supported by some substantial evidence, is binding upon this court on appeal.

I. Three errors are assigned by the defendant. First, it is said the trial court was in error in refusing to strike the res ipsa loquitur theory from Count II of the petition. The effect of this is that the court was also in error in finding that a sufficient showing of the applicability of the doctrine was made and returning its judgment for the plaintiffs based, in part at least, thereon. The second error assigned is that the court was in error in applying the res ipsa doctrine to overcome defendant's claim of governmental immunity, and there was no evidence of specific negligence which would deprive defendant of such immunity. The third error involves the same questions as the first two. It contends that defendant's motion for directed verdict should have been granted because the plaintiffs failed to show any specific or affirmative negligence of the defendant which would deprive it of the immunity.

II. The doctrine of 'liability without fault' has been held to apply in Iowa to cases of damage resulting from blasting operations. Watson v. Mississippi River Power Co., 174 Iowa 23, 156 N.W. 188, L.R.A.1916D, 101. Other cases have so held. See Pumphrey v. J. A. Jones Construction Co., 250 Iowa 559, 94 N.W.2d 737, and citations. Under this rule, negligence of the defendant need not be shown as an essential element of plaintiff's recovery.

But we have also held that when the work is done by an independent contractor for a governmental body, and he operates in accordance with the plans and specifications of the government, he has the same immunity, and no recovery may be had. Pumphrey v. J. A. Jones Construction Co., supra. This is the basis of defendant's claim in the case at bar. But we also said: 'Likewise, we may consider it established * * * that if there had been negligence on the part of the defendants they could claim no share in governmental immunity from suit.' Pumphrey v. J. A. Jones Construction Co., supra, loc. cit. 250 Iowa 563, 94 N.W.2d 739; Grennell v. Cass County, 193 Iowa 697, 702, 187 N.W. 504, 506, 507; Thompson Caldwell Construction Co. v. Young, 4 Cir., 294 F. 145. So the question before us is whether the record fairly supports the findings of the trial court that there was specific negligence shown; or whether the doctrine of res ipsa loquitur applies and is supported by competent and substantial evidence. Whether the question of specific negligence is adequately pleaded is not raised by the defendant and we give it no attention. We determine the case upon the errors assigned.

III. While the defendant's argument revolves largely about the res ipsa loquitur doctrine and its alleged inapplicability to the situation before us, we think it unnecessary to determine the point. We are of the opinion specific negligence was shown. It will be noted that in both its second and third assignments of error the defendant asserts there was no such negligence proven. The trial court found there was, and we think the record shows substantial evidence in support of its holding. We address ourselves to the case as made by the errors assigned. The defendant does not contend there was no issue of specific negligence raised by the pleadings, but asserts only no such negligence appears in the record.

The defendant thinks the record shows nothing more to indicate negligence than the happening of injury to plaintiffs' property. He overlooks some important evidence. Arthur Razor, vice-president of the defendant company and the superintendent of the work on the job, testified that they procured the services of an expert on the use of dynamite, who gave the directions as to the amount to be used in each charge, and that they never exceeded that amount, but generally used considerably less. R. W. Yauch, the expert in question, testified as to the amounts he prescribed. The record shows this: 'Q. * * * Based upon the shot patterns you submitted to Mr. Razor and the load recommendations you gave to Mr. Razor and if those had been conformed with throughout the blasting and further based upon your experience in the trade, is it your opinion that any damage could have occurred to the residence that you observed in the area as a result of the blasting? A. Definitely not. Q. Would it make any...