Reynolds v. W.H. Hinman Co.

• Decision Date: 09 October 1950
• Citation: 145 Me. 343,75 A.2d 802
• Parties: , 20 A.L.R.2d 1360 REYNOLDS et al. v. W. H. HINMAN CO.
• Court: Maine Supreme Court

Page 802

75 A.2d 802

145 Me. 343, 20 A.L.R.2d 1360

REYNOLDS et al. v. W. H. HINMAN CO.

Supreme Judicial Court of Maine.

Oct. 9, 1950.

Edward W. Bridgham, Harold J. Rubin, Bath, for plaintiffs.

Verrill, Dana, Walker & Whitehouse, Portland, for defendant.

Before MURCHIE, C. J., and FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

NULTY, Justice.

This case comes before this court on exceptions by the plaintiffs to the sustaining of a special demurrer setting forth several causes of demurrer filed by the defendant. The declaration contains three counts. The first count alleges that the plaintiffs on or about the first day of December 1946, owned real estate and a dwelling house in Bath, Maine, in close proximity to U. S. Highway No. 1, a public highway on which the defendant was engaged in public construction work; that in the course of said construction work the defendant, through its servants and agents, blasted rock formations and ledges by the use of an explosive, namely, dynamite; that it was defendant's duty to so carefully do the blasting that plaintiffs' property would not be damaged by the force of the explosions; and that the explosions and vibrations from the blasting did cause severe damage to the plaintiffs' property. The second count in the declaration is substantially the same as the first count, the difference being that there is an allegation that the defendant so negligently blasted rock formations that the force of the explosions and vibrations caused severe and serious damage to the plaintiffs' property. The third count in the declaration is substantially the same as the first two except that it alleges that the defendant negligently, carelessly and wantonly blasted with excessive amounts of explosives.

One of the causes of demurrer set forth in the special demurrer to the first count in the declaration is that it is not sufficient in law because the plaintiffs have averred that it was the duty of the defendant, its servants or agents, to so carefully and properly blast the rock formations that the property of the plaintiffs would not be destroyed or damaged by the force of such explosions, whereas the duty of the defendant, its servants or agents, was only to use reasonable care in such blasting. Another cause of special demurrer to the first count is that it is not sufficient in law because the plaintiffs have failed to allege in said first count that the damage complained of was caused by any negligence or want of due care on the part of said defendant, its servants or agents. The first cause for special demurrer to the second count in the declaration is that the plaintiffs have alleged it to be the duty of the defendant to so carefully and properly blast that the property of the plaintiffs would not be damaged by the force of said explosions, whereas, the duty of the defendant, its servants or agents, was only to use reasonable care in such blasting. Another cause for special demurrer to the second count challenges its sufficiency because it alleges that defendant so negligently blasted as to cause damage to plaintiffs' property without setting forth in what particular or particulars the defendant, or its servants or agents, were negligent. The cause for demurrer to the third count of the declaration challenges its sufficiency because it states that it was defendant's, or its servants' or agents', duty to so carefully blast that plaintiffs' property would not be damaged by the force of said explosions, whereas its duty was only to use reasonable care in such blasting. The plaintiffs joined in the special demurrer and it was sustained as to all three counts in the declaration and plaintiffs seasonably filed exceptions.

The special demurrer in this case, in the opinion of this court, points out particular imperfections in the declaration and under our decisions beginning with Neal v. Hanson, 60 Me. 84, 85, when the defect is a matter of form and not of substance it must be specially set forth. See also Boardman v. Creighton, 93 Me. 17, 44 A. 121; Couture v. Gauthier, 123 Me. 132, 122 A. 54; Estabrook v. Webber Motor Co., 137 Me. 20, 15 A.2d 25, 129 A.L.R. 1268.

Passing for a moment the first count in the declaration and taking up the second and third counts, an examination discloses that the second count attempts to invoke the doctrine of res ipsa loquitur, which is, according to the authorities, merely a rule of evidence and not a substantive rule of law and the most that may be said for it is that the doctrine allows an inference that may constitute evidence of negligence which may be weighed and considered either by a jury or a court as against the evidence adduced by the defendant in rebuttal thereof. It is sometimes said to be an exception to the general rule that negligence is not to be presumed but in fact it probably is a qualification rather than an exception to the general rule of evidence that negligence must be affirmatively proved in that it relates to the mode rather than the burden of establishing negligence. See 38 Am.Jur., Par. 298, Page 994, also Edwards v. Cumberland County Power & Light Co., 128 Me. 207, 214, 146 A. 700, and Chaisson v. Williams, 130 Me. 341, 156 A. 154. In any event, the second court, as above stated, does not set forth in what particular or particulars the defendant or its servants or agents were negligent. This failure will be commented upon later, after we consider the third count in the declaration.

Said third count charges the defendant, its servants or agents, with negligently, carelessly and wantonly blasting with excessive amounts of explosives without any specific allegation or description of the defendant's, its servants' or agents', negligence.

With respect to the second and third counts of the declaration, the plaintiffs set forth in their brief and practically admitted in oral argument that they did not expect this court to adopt the rule of res ipsa loquitur and that so far as the third count was concerned they admitted both in their brief and at oral argument that the third count depended upon proof of specific acts of negligence. This court has on many occasions set forth the law of this state with respect to the duty of a plaintiff in an action of negligence. In Nadeau v. Fogg and Watier v. Fogg, Me., 70 A.2d 730, 732, we said:

'Under the law of this state it is the duty of the plaintiff in an action of negligence to inform the defendant of the facts upon which he relies to establish liability for the injuries alleged and a plaintiff must set out a situation sufficient in law to establish a duty of the defendant towards the plaintiff and that the act complained of was a violation of that duty. Knowles v. Wolman, 141 Me. 120, 39 A.2d 666. The well established applicable principles of pleading in negligence cases have been concisely stated in Chickering v. Lincoln County Power Company, 118 Me. 414, 417, 108 A. 460, 461, and again restated in Ouelette v. Miller, 134 Me. 162, 166, 183 A. 341, and also in Estabrook v. Webber Motor Co., 137 Me. 20, 25, 15 A.2d 25, 129 A.L.R. 1268. In Chickering v. Lincoln County Power Company, supra, it is stated 'actionable negligence arises from neglect to perform a legal duty. * * * By direct averment a pleader must at least state facts from which the law will raise a duty, and show an omission of the duty, with injury in consequence thereof. * * * Reasonable certainty in the statement of essential facts is required to the end that defendant may be informed as to what he is called upon to meet on the trial. Facts showing a legal duty, and the neglect thereof on the part of the defendant, and a resulting injury to the plaintiff, should be alleged.''

The special causes of demurrer with respect to the second and third counts in any event reach the questions raised by the defendant and under the authority of Nadeau v. Fogg and Watier v. Fogg, supra, it is our opinion that the special causes of demurrer applicable to each count were properly sustained because the declarations in the second and third counts do not conform to the well recognized principles of negligence pleading set forth above. This leaves for disposal and consideration the first count in which there is no allegation of negligence. The plaintiffs seek to apply to their alleged damage from concussion and vibration the rule of absolute liability which rule is that a man, though acting entirely without fault, is liable for the damaging consequences of his innocent acts. This rule is not founded on negligence or fault or liability but is presumed from the circumstances of the action. Our state has never adopted such a rule, but it has been adopted in a number of states and the special causes of demurrer to the first count in the declaration squarely put the question before this court. In passing it should be noted that unless we do adopt the rule of absolute liability sought by the plaintiff, the exceptions to the sustaining the special causes of demurrer to said first count should be overruled for the reasons hereinbefore set forth in that said first count does not conform to the well recognized and decided principles of negligence pleading in use in this state. Professor Jeremiah Smith, in 33 Harvard Law Review, 542, 550, in an article entitled 'Liability for Damage to Land by Blasting', in which article the authorities are extensively reviewed, says, in part:

'The history of law as to the former absolute liability in the absence of fault, and as to the present general requirement of fault as a requisite to liability, can be stated very briefly. Speaking generally, the modern law is a reversal of the ancient law.

'In old days it was the general rule that a man, though acting entirely without fault, was liable for the damaging consequences of his innocent acts. In some cases where this doctrine worked extreme hardship, an innocent actor was exonerated; but these instances of nonliability were exceptions.

'At the present...