Roshong v. Travelers Ins. Co.
| Decision Date | 20 August 1973 |
| Docket Number | No. 4268,4268 |
| Parties | Leslie L. ROSHONG, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Roy B. Tuck, Jr., Leesville, for plaintiff-appellant.
Hall & Coltharp by H. O. Lestage, III, DeRidder, for defendants-appellees.
Before HOOD, CULPEPPER and MILLER, JJ.
Plaintiff Leslie L. Roshong appeals seeking an increase in the award for damages caused to his house by seismic operations conducted by defendant Seismic Engineering Company under contract to defendant Placid Oil Company, both insured by defendant Travelers Insurance Company. We amend to increase the $710 awarded by the trial court.
Roshong's brick veneer house was constructed on a floating slab and was built in two phases. The north structure consisting of 1456 square feet was completed in March of 1964, and a 964 square foot addition (to the south) was completed in April 1968. The same contractor, Mr. R. C. Thompson, built both portions of the house for a total price of $23,104.
The house was built on the slope of a hill after a bulldozer was used to cut the hill and spread the surplus earth in the front yard. The foundation rested on solid clay.
On August 20, 1969 at 3:45 p.m. Seismic detonated a 20 pound charge of dynamite which had been deposited at a depth from 92 feet down to 100 feet below the surface of the earth. This charge was set at a point approximately 1080 feet north of the north edge of Roshong's house. At 4:05 p.m. a similar charge was detonated at a point 545 feet south of the south edge of Roshong's house. The first charge was not noticed by the residents in the area, but the second charge 'ventilated' or blew out of the hole.
According to Mr. and Mrs. Roshong, Mrs. Annie Stephens White, Mr. Ronny Mack Redmond, Mr. and Mrs. Clarence B. Dye, and Barbara Rae Sellers, the 'shot' startled everyone in the area. Mr. and Mrs. Dye live some 450 to 600 feet northeast of the Roshongs. Mr. Dye was in the yard and felt the blast. Mrs. Dye was inside their frame house and she heard the loud noise and felt her whole house vibrate. Three of these witnesses were in the Roshong house when the charge was detonated and each testified that the concrete floor shook and the windows rattled. Two witnesses were in Roshong's garage located 150 feet from the house and each testified that he felt the earth shake.
All of these witnesses, except the Dyes who did not visit the Roshongs, testified that there were no defects in the Roshong house before the August 1969 blasts. Within two days after the blasts certain damages to the Roshong house began to show up. Mr. Dye testified that five water wells in the vicinity went dry shortly after the blasts and one of those wells was his. So far as the record shows there has been no claim filed for damage to a water well.
Mr. R. C. Thompson testified that he had been a construction worker for thirty years and a general contractor since 1955. He built many homes to FHA and VA standards and testified that the Roshong house was built to meet these standards; that of the numerous houses and churches he built in the area, none have developed problems similar to those presented by the Roshong house. Mr. Thompson testified that the four inch thick slab and 24 inch footings for the north structure were reinforced and were poured in one pour. The south addition was constructed to the same specifications. Both slabs were laid out level. The union bricklayer who had 26 years' experience as a bricklayer, verified that the slabs were level.
Defendants seek to discredit Thompson because he did not have a State license as a contractor and was therefore limited to construction of units which cost less than $30,000. It was also pointed out that as of the trial date, Thompson was no longer a contractor. He was then operating a grocery and restaurant business . The trial court discredited Thompson and the bricklayer because they had an interest in defending their own work.
Plaintiff called Mr. H. F. McMullen, an expert contractor, who found that the Roshong house was built to average standards for houses constructed in Vernon Parish. McMullen had examined houses for the Veteran's Administration to determine that VA standards were met. He had inspected only one of Thompson's houses, and found that it met the standards. This witness was discounted by the trial court because he testified that he did not know whether or not the explosion caused the damage.
Plaintiff also called Mr. Frank Riley as an expert contractor. Riley verified that the standard of construction was satisfactory. His testimony was discounted because he had known Roshong for seven years.
As against plaintiff's four experts and five lay witnesses (the lay witnesses testified that the house was free from defects prior to the August 1969 blasts, and that numerous defects showed up immediately thereafter), the trial court accepted the opinions of defendants' experts Mr. E. E. Taylor and Mr. Eugene Buckholtz. It was held that '. . . more weight should be given to the affirmative and disinterested testimony of defendants' expert witness in the case . . .' Both Taylor and Buckholtz testified that the slab must have been laid improperly and that many of the defects were due to faulty construction and antedated the explosions. They stated that such damage could be accounted for due to natural settlement of the earth or to defective construction workmanship. But no soil analysis tests were taken and there is no fact cited to support their opinion that the earth settled before defendants' blasts. There was no showing that the foundation and slab, the fireplace and chimney were defectively constructed. There was evidence that the flashing around the chimney was not properly installed, but this would not account for the broken bricks in and the leaning of the chimney.
Mr. Taylor testified that the air concussion or movement could possibly cause some of the damage found in Roshong's house. Tr. 300 . However, he testified at length and cited impressive authority to support his conclusion that these 'shots' could not possibly have disturbed the earth near and under Roshong's house. Taylor examined the house one time in December 1969 and took 29 color pictures depicting the condition of the house as of that date. By the time of the 1971 trial, the small cracks found in December 1969 had substantially increased. The broken slab (which was only cracked as of December 1969) had settled on the north end of the house some five and one-half inches below the level at the center of the house.
The trial court found that Taylor and Buckholtz agreed that the air-born shock wave (which started some 545 feet South of Roshong's house) damaged the north part of Roshong's house by breaking a window, breaking some bricks in the walls, and 'popping' the panelling inside the house. Buckholtz testified that it would cost $710 to repair this damage and this amount ws awarded as damages. The trial court rejected the claim for damages relating to the broken slab, the 5 1/2 inch sinking of the slab at the north end of the house, and the cracking and tilting of the fireplace and chimney.
At trial defendants denied that the blasts damaged Roshong's house, but defendants have not answered the appeal. It is therefore admitted that the blasts or at least one blast caused damages to Roshong's house. The only issue concerns the extent of the damage.
The two issues for determination are whether or not the seismic explosions were the cause in fact of all injuries complained of by Roshong, and if they were, what actual damages were suffered.
We find manifest error in the determination that the damage to the slab, fireplace and chimney is not related to the damage wich defendants' experts admit was caused by the blast or blasts. The evidence convinces us that the stress which broke bricks and 'popped' the prefinished plywood interior wall board...
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