Richards v. C. B. Contracting Co.

• Decision Date: 20 October 1965
• Docket Number: No. 8391,8391
• Citation: 395 S.W.2d 737
• Parties: G. T. RICHARDS and Mary Richards, Plaintiffs-Respondents, v. C. B. CONTRACTING COMPANY Inc., a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 737

395 S.W.2d 737

G. T. RICHARDS and Mary Richards, Plaintiffs-Respondents, v. C. B. CONTRACTING COMPANY Inc., a corporation, Defendant-Appellant.

No. 8391.

Springfield Court of Appeals, Missouri.

Oct. 20, 1965.

Robert T. Donnelly, Donnelly & Donnelly, Lebanon, Harry H. Kay, Robert J. Quigley, Kay & Quigley, Eldon, for defendant-appellant.

Morgan M. Moulder, Camdenton, for plaintiffs-respondents.

HOGAN, Judge.

This is an action for damages to the plaintiff's property caused by the defendant's use of explosives in excavating for a sewer line in Camdenton, Missouri. The plaintiffs had a verdict in the sum of $770.00, and the defendant has appealed. Because of the circumscribed nature of the appeal, only a brief review of the facts is necessary.

At the time involved, the plaintiffs owned and lived in a house on Illinois Street in Camdenton. The house consisted of a living room, kitchen, two bedrooms, bathroom, enclosed porch and a small back porch. It was about four years old when the plaintiffs acquired it 'the latter part of '37 or the early part of '38,' and was worth, according to Mr. Richards, '$10,000 or a little in excess probably,' and according to Mr. Welker, a building contractor, '$10,000 to $12,000.' A considerable part of the house had plaster walls and ceilings.

The defendant, as part of its business, installed sewers and disposal plants, and at the time in question was digging trenches for the installation of a sewer system under contract with the city of Camdenton. In this instance, the defendant was using an ordinary backhoe to dig the trenches, but because of 'hardpan and boulders' in the vicinity of the Richards house, it became necessary to blast, because, as the defendant's foreman put it, '* * * we just couldn't dig.'

In contrast to many cases of this kind, the plaintiffs attributed their damage to the effect of a single, violent blast. It is unnecessary to go into the evidence in detail, but the plaintiffs' claim was that on August 3, 1962, there was a blast or detonation which was '* * * one that was different from all the rest, it was more powerful.' The plaintiffs maintained that this particular detonation had caused extensive damage to the plaster in their house, though there was no claim of damage to the foundation or to the structure of the house otherwise. There was evidence that the reasonable cost of repair and restoration of the plaintiffs' house was 'a little less than $800,' or, according to Mr. Richards, 'slightly under $800.'

While it vigorously contested the plaintiffs' claim, the defendant did not deny the use of explosives at the time involved, but maintained, as we have said, that the structure of the earth was such that the use of explosives was necessary. The defendant also adduced rather elaborate proof from an expert witness that the cracks in plaintiffs' plaster were the result of settlement and deterioration, rather than blasting damage, and offered proof through this same expert that the amount of explosives used near the Richards house was so small that it could not possibly have caused damage to the house.

The only assignment of error made by the defendant on this appeal is that the giving of plaintiffs' Instruction 3 constituted error. Instruction 3 is as follows:

'The court instructs the jury that the law applicable to this case does not require plaintiffs to allege or prove specific acts of negligence on the part of defendant, if any, and the defendant is responsible for such damages, if any, to plaintiffs' dwelling house which, if you so find, was directly caused by blasting or discharge of blasting powder or explosives on or about the 3rd day of August, 1962, by defendant or its agents or employees, and, if you so find, then the defendant is responsible for such damages, if any, regardless of the degree of care which defendant exercised in such blasting or in discharge of explosives'

The defendant, asserting that Instruction 3 was argumentative and 'unduly emphasized the liability of defendant,' cites in support of its argument the cases of Stupp v. Fred J. Swaine Mfg. Co., Mo., 229 S.W.2d 681, 684, 685; Kemmler v. City of Richmond Heights, Mo., 114 S.W.2d 994; and Frye v. Baskin, Mo.App., 231 S.W.2d 630, 637. We have examined these authorities carefully. In the Stupp case, the plaintiff sustained personal injuries while operating a punch press machine for his employer, and he brought an action against the manufacturer of the machine, claiming that the manufacturer had wrongfully delivered the machine to his employer in an unsafe and dangerous condition. There was evidence that certain adjustments or repairs had been made by the employer or its foreman after the machine was received by the plaintiff's employer, and the defendant made proof that the machine had been rendered unsafe and dangerous because of the employer's repairs, rather than its negligent manufacture or assembly of the machine. The defendant gave an instruction predicating a verdict for the defendant upon the ground that the sole cause of plaintiff's injury was the employer's repair or adjustment of the machine. The plaintiff then offered, and the trial court gave, plaintiff's Instruction No. 9, advising the jury that if they found the defendant to be negligent, and its negligence combined with the conduct of the employer and its foreman in producing the injury, then '* * * there would be no issue of such sole cause in the case because the defendant could not make use of such conduct [of the employer and foreman] to shield itself against the result of its own negligence * * *.' The trial court concluded it had erred in giving this instruction and granted a new trial. On appeal, the Supreme Court considered that Instruction No. 9 was argumentative in form and probably foreclosed a fair consideration of the defendant's sole cause instruction, and affirmed the order granting a new trial. In the Kemmler case, the trial court gave an instruction withdrawing the issue of fraud and misrepresentation from the consideration of the jury in an action wherein the plaintiff sought, among other things, to set aside a release upon the ground that the defendants had obtained it...