Pelphrey v. Diver, 10882

• Decision Date: 12 July 1961
• Docket Number: No. 10882,10882
• Citation: 348 S.W.2d 453
• Parties: W. O. PELPHREY, Appellant, v. Clarence Nabor DIVER, Appellee.
• Court: Texas Court of Appeals

Page 453

348 S.W.2d 453

W. O. PELPHREY, Appellant, v. Clarence Nabor DIVER, Appellee.

No. 10882.

Court of Civil Appeals of Texas, Austin.

July 12, 1961.

Rehearing Denied August 2, 1961.

Vinson, Elkins, Weems & Searls, Gaius G. Gannon, Jr., Houston, for appellant.

Leonard Allen, Rockdale, Jack W. Prescott, Cameron, for appellee.

GRAY, Justice.

Appellant, W. O. Pelphrey, has appealed from a judgment awarding appellee, Clarence Nabor Diver, a recovery for damages to his home alleged to have been caused by negligence in blasting in a rock quarry or pit.

Appellant was engaged in highway construction for the State in Milam County and to secure foundation material he blasted rock in a pit on a hill. The hill was higher than the surrounding territory, the houses in the area were visible from the pit and it was generally visible from them.

Appellee alleged that on or about August 5, 1959 at about 5:30 p. m. his home was damaged by an explosion set off by appellant or his employees at the rock pit being used by appellant; that his home was located about three fourths of a mile from the pit, and that his home was of hollow tile construction with sheetrock partitions. He alleged the damages sustained to his home and its value before and after the explosion. He alleged nine separate acts or omissions on appellant's part, and that each was negligence and a proximate cause of his damage. Appellant answered by a general denial.

Appellee also sued St. Paul Fire and Marine Insurance Company to recover on a contract of insurance. That company answered and by its cross action sought a recovery over against appellant for the amount appellee recovered against it. A judgment for $5,000 against the insurance company was rendered and it was awarded a recovery for this amount against appellant. The insurance company has not appealed, it is not a party here and will not be further noticed. The judgment against appellant is for $8,842 and provides:

'* * * plaintiff shall be required to collect the above judgment against W. O. Pelphrey before he shall collect anything from said Insurance Company and if, after exhausting all legal remedies, the Plaintiff is unable to collect above judgment against said W. O. Pelphrey, then he may collect from said Insurance Company, but if he can collect his judgment from Pelphrey, he shall take nothing as against said Insurance Company.'

The witness Allgood testified that he was general superintendent for appellant. He described the blasting operations and said there were two kinds of rock in the pit, one soft and one hard, and that it took more energy to break the hard rock than it did the soft. The soft rock was about 18 feet thick and the hard rock varied to about 9 feet in thickness. The soft rock was on top, it was used first and practically all of the rock in the pit was used on the construction. Below the hard rock there was a sand pit.

A rotary drill was used, four inch holes were drilled in the soft rock to a depth of about 18 or 20 feet, and smaller holes, and of course to a lesser depth, were drilled in the hard rock. These holes were drilled in a pattern and distances apart. The holes were loaded with explosives which were exploded and the broken rock then stockpiled for use on the highway. One blast would loosen five, six or eight thousand yards of material. In the hard rock the holes were loaded with the equivalent of about three thousand pounds of powder and in the soft rock with about five or six thousand pounds. Three kinds of explosives were used: gelemite (same as dynamite) texmite and dynamite--dynamite being more powerful than texmite. Allgood said that he gave the pattern for the blasting but other employees did the actual drilling, loading the holes and shooting the blasts. He said that he and the engineer furnished by the powder company determined the amount of powder to be put in the holes; that said engineer helps design the shots but that he himself was the boss in charge and had the final say in loading the holes.

The blasting was done only when materials were needed. It began on June 22 or 24, 1959 and ended September 2, 1959. During that time twelve explosions occurred. The blasting was done by one Ruiz who did not testify. Allgood said he was not present at all of the explosions but was present at the first two and at the last one on September 2, 1959. He testified from daily work sheets and said they showed a blast occurred in the pit on August 5, 1959 at 6 p. m. He said this sheet was written up differently from the others; that it showed: 101 holes with a 9 X 7 spacing and a depth of 17 feet; 2650 pounds of fertilizer (texmite) and seven cases of Hercules (350 pounds of dynamite) used and 4800 cubic yards of rock broken up. He said he did not know whether the rock was hard or soft.

The only other employee of appellant who testified at the trial was Eugene Morgan whose testimony will be later noticed.

Appellee testified that his house was built in the summer of 1955; that its outside walls were hollow tile plastered on the inside and that it had sheetrock on wooden studs for the partitions; that it was on a reinforced concrete foundation with a beam through the center; that the foundation was on clay with a poured sand base of about six inches; that it had five rooms, a bath and carport. He said the rock pit was about three fourths of a mile from his home; that he recalled the several blasts set off at the pit and that the one on or about August 5, 1959 was outstanding. He said most of them occurred in the late afternoon and that he was usually at home. He said that when the August 5 blast occurred he was sitting in his home with his wife; that the blast 'shook the elements and the ground and everything' that the plaster on the walls of his home began falling off in big strips and that at least half of it was cracked and ruined and that eleven cracks appeared in the outside walls. He said he used a corn scoop to get the plaster out of his house. He said he looked toward the pit and saw a big dust cloud there and that it looked like a picture of an atom bomb blast and said the blast on August 5 was the heaviest one of them all.

Appellee's daughter, Mrs. Peggy Schlemmer, testified that she lived about 175 yards from her father's house; that she remembered the blasting at the rock pit in 1959; that during the first part of August there was a 'terrible' blast; that it was greater than the others; that she lived in a lumber house and that she heard her dishes and windows rattle; that she ran out on her porch and saw the dust cloud over on the mountain where the pit was located. She said that at the time she was preparing supper and that it was before her husband came home from work. She said that she then went to her father's house, saw the cracks in the outside walls and plaster on the floors and that they were cleaning the plaster out of the house and that she helped them. She described the damages to the house and said that afterwards when it rained that the rain came in the house and said that prior to the blast there had been no trouble with the plaster in the house and no trouble with the outside walls.

Mrs. Giles Yoakum testified that she lived about a third of a mile from appellee; that she could see the blasting pit real well from her home; that she lived in a frame house about three fourths of a mile from the pit; that she remembered a number of blasts; that she remembered one around the first part of August; that she thought it was a bomb and that it was a lot greater than the others. She said it shook the windows, rattled the dishes, caused the linoleum to come up from the floor and the television to go off. She said they had an underground cistern and a few days after the blast she went to get water from it and there was no water there; that upon examination they found the bottom of the cistern cracked and that it had to be repaired. She said her home was about the same distance from the pit as was appellee's home and that her house was east of appellee's. She said after the blast she went outside and saw 'that mushroom cloud' and that the dust came nearly to her house. She said she had visited in appellee's home before and after the August 5 blast; that prior to that time the house was in good condition; that afterwards it was in a damaged condition, and described the damages substantially as set out above.

Curtis Hairston testified that he lived about a quarter of a mile from the pit and about a mile from appellee; that he was employed by the Milano school as custodian and bus driver; that he was familiar with appellant's blasting operations, and that he was usually at home when the blasts occurred because they blasted after quitting time. He said he lived in the same general direction as appellee from the pit and that appellee lived about a mile from the pit. He said some of the blasts were heavier than others and that the one on August 5 was the heaviest; that he was at his home at the time and that it broke sheetrock in his house. He said his house was a frame house built in an 'L' shape; that the blast pulled the house loose at the 'L', and that it felt like the ground was going to rise up. He said he had lived in the area all of his life and was familiar with the terrain, the land and the hills there; that he had gotten his knowledge and experience by digging wells in the area; that generally it is sand down about twenty-five feet and then sand rock; that the blasting at the pit was on the main fault which runs from northeast to the southwest and that other faults lead off from the main fault to the north and to the south; that he had a well on his place which was curbed down twenty-five feet to the rock; that the blast on August 5, 1959 broke the wall and caused his well to cave in about thirty feet down and that he had to have it curbed. He described appellee's house and the damage to it.

A surveyor testified that he measured...