Perdue v. S. J. Groves & Sons Co.

• Decision Date: 28 May 1968
• Docket Number: No. 12694,12694
• Citation: 161 S.E.2d 250,152 W.Va. 222
• Court: West Virginia Supreme Court
• Parties: Earl L. PERDUE et al. v. S. J. GROVES AND SONS COMPANY, etc., et al.

Page 250

161 S.E.2d 250

152 W.Va. 222

Earl L. PERDUE et al. v. S. J. GROVES AND SONS COMPANY, etc., et al.

No. 12694.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1968.

Decided May 28, 1968.

Syllabus by the Court

1. In a deed by which landowners, for a specified monetary consideration, conveyed to the state road commission a certain parcel of land for highway construction purposes and also, by adequate language in the deed, compromised any and all claims which might result to the landowners from the proposed construction and released the state road commission from further liability for the value of the land conveyed and for all damages which might thereafter result to the landowners from the proposed construction, such compromise, settlement and release do not constitute a release of independent contractors which subsequently performed the construction under a contract with the state road commission from a claim of the landowners for damage alleged to have been caused to their property as a proximate result of negligence of the independent contractors or from their use of explosives for blasting in the performance of the highway construction under their contract with the state road commission.

2. 'The use of explosives in blating operations, though necessary and lawfully used by a general contractor in the construction of a public highway, being intrinsically dangerous and extraordinarily hazardous, renders the contractor liable for damages resulting to the property of another from such blasting, without negligence on the part of the contractor.' Point 2 Syllabus, Whitney v. Ralph Myers Contracting Corp., 146 W.Va. 130 (118 S.E.2d 622).

3. 'A general contractor in the construction of a public highway is liable for damages resulting to the property of another from blasting operations conducted by him, notwithstanding such damages were due solely to vibrations occasioned by the blasting.' Point 3 Syllabus, Whitney v. Ralph Myers Contracting Corp., 146 W.Va. 130 (118 S.E.2d 622).

4. Corporations which are employed as independent contractors by the state road commission to construct a portion of a public highway may be held liable for damage proximately caused to the property of landowners by their negligence or by their use of explosives for blasting in the performance of the highway construction under the construction contract with the state road commission, and in an action by the landowners for recovery of damages thus proximately caused to their property, the independent contractors are not entitled to governmental immunity from liability.

5. A party who moves for summary judgment in his favor has the burden of showing that the action involves no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Any doubt as to the existence of such issue should be resolved against the party moving for such judgment.

6. A trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should be freely given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court's discretion in ruling upon a motion for leave to amend.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for appellants.

Jenkins, Schaub & Fenstermaker, C. Robert Schaub, Huntington, for appellees.

CALHOUN, Judge.

This case, on appeal from the Circuit Court of Cabell County, involves a civil action instituted in that court by Earl L. Perdue and Norma M. Purdue, husband and wife, as plaintiffs, against S. J. Groves and Sons Company, a corporation, and Turman Construction Company, a corporation, as defendants, for recovery of damages in the sum of $6,000 alleged to have been caused by the defendants to the home of the plaintiffs situated in the City of Huntington while the defendant corporations were engaged, under a written contract with The State Road Commission of West Virginia, on the construction of a certain highway bridge and an approach thereto to be used as part of Interstate Highway Number 64.

In their complaint, the plaintiffs alleged that, during the course of the construction, the defendants wilfully, recklessly and negligently set off explosives 'which resulted in terrific blasts of such force and violence' that the plaintiffs' residence was thereby greatly damaged; that 'the defendants aforesaid willfully, recklessly and negligently drove pilings almost daily during said period of time which resulted in terrific vibrations of such force and violence and displacement of earth that they greatly damaged said residence * * *;' that the defendants had complete control over such blasting and pile driving operations; and that such operations were conducted in furtherance of the interests of the defendants and for their benefit and were the direct and proximate cause of the damage to the plaintiffs' property. The complaint states in detail the damage which the plaintiffs allege was thus caused to their dwelling by the defendants.

As a ground of defense, the defendants alleged in their answer that the plaintiffs 'are precluded from recovery' in the action by reason of a release they executed to the state road commission. A motion for summary judgment was made by S. J. Groves and Sons Company, pursuant to Rule 56 of the Rules of Civil Procedure, based on the pleadings and certain stipulations of facts, on the ground that a release provision contained in a deed made by the plaintiffs to the state road commission, dated May 31, 1963, when properly construed, 'operates as a release of all damages here claimed by plaintiffs against this defendant.' The deed was made a part of the record by stipulation. It recites that the plaintiffs as grantors shall be referred to therein as 'Grantor'. The language of the deed referred to in the answer and in the motion for summary judgment is as follows:

'For the recited consideration, Grantor, whether or not the owner of remaining or other land adjoining said land, or of any interest therein, releases Grantee, its successors and assigns forever, from any and all claims for damages or compensation of any nature whatsoever, arising directly or indirectly from the purchase of the parcel herein described, or from the construction and maintenance of a highway or the improvement and maintenance of said land and adjoining lands for highway purposes, or from work performed or material placed upon or removed from said lands or any adjoining lands owned by the Grantee. Without limiting the generality of the foregoing, Grantor further expressly releases all claims of Grantor for damages to any residue of land retained or adjoining or nearby land owned by the Grantor; and all damages by reason of increased lateral burden, loss of lateral support, diversion of water courses and streams, concentration and discharge of water on lands of Grantor, and hindering the flow of water and water courses; it being agreed that the compensation herein provided for as purchase price is full compensation for all of the parcel herein described and for all rights and easements hereby released and all damages herein mentioned which Grantor has or may hereafter suffer.'

The deed expressly refers to 'a map entitled, 'The State Road Commission of West Virginia, Right of Way Plans of State Road Project No. I--64--1 * * * Interstate 64 * * * of record in the Office of the Clerk of the County Court of Cabell County, West Virginia, * * *."

By an order entered on June 8, 1967, the Court, 'being of the opinion that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law', sustained the motion for summary judgment. In its written opinion, which was made a part of the record, the trial court stated the basis of its action in entering summary judgment as follows:

'I am of opinion to hold that the plaintiffs, by the above provision in their deed, released all claims for damages occasioned by construction of the highway, including the damages complained of in this action.

'I base this holding not upon the constitutional provision of immunity from suit, against the State of its agents or employees, as provided by Sec. 35, Article VI, of the State Constitution, but rather upon the contractual status of the parties growing out of the deed made by the plaintiffs.'

In their petition for appeal to this Court the plaintiffs assert that the trial court erred (1) in granting summary judgment for the defendants; (2) in holding that the language previously quoted from the deed executed by the plaintiffs to the state road commission constituted a release of the claims asserted by the plaintiffs in their action against the defendant corporations, as independent contractors; and (3) in overruling the plaintiffs' motion for leave to amend their complaint.

An amicus curiae brief filed by permission of the Court in behalf of the State Road Commission of West Virginia asserts that the language of the deed which is in the nature of a release of the state road commission from further liability does not have the effect of releasing the defendant corporations, as independent contractors, from liability for any damages which may have been caused to the property of the plaintiffs as a consequence of wilful, reckless and negligent conduct of the defendants in connection with the construction operations.

The case was submitted for decision in this Court upon the record made in the trial court; upon the amicus curiae brief; and upon written briefs and oral arguments of counsel for the parties.

The defendants were not parties to the deed previously referred to. They were not referred to therein by name or otherwise and, therefore, we are of the opinion that no language of the deed can be deemed to constitute a release of the...