Rotert v. Peabody Coal Co.
| Decision Date | 01 July 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 513 S.W.2d 667,75 A.L.R.3d 755 |
| Parties | John ROTERT and Elizabeth Rotert, Respondents, v. PEABODY COAL COMPANY, a foreign corporation, Appellant. 26217. |
| Court | Missouri Court of Appeals |
Robert S. McKenzie, Kansas City, for appellant; McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, of counsel.
Edward J. Murphy, Inc., Butler, for respondents.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
Respondents recovered judgment against appellant for blasting damage and nuisance occurring during its strip coal mining operations adjacent to respondents' dwelling which was upon a ten acre tract of land. Of the various issues presented the one most vigorously contended by the parties is the propriety of submitting the issues of punitive damages, respondent Elizabeth Rotert's claim for emotional distress and resultant illness and her husband's claim for loss of her consortium by reason of her illness, because as claimed by appellant, there was no evidence that its blasting operations were conducted willfully, wantonly or maliciously.
The judgment entered was for.$31,400.00 actual damages and $32,000.00 punitive damages on all counts, which was after a $3,000.00 remittitur was ordered and accepted by respondents because the jury on one count exceeded the prayer in that amount.
Under Count II, for property damage to buildings, the award was $8,000.00 actual damages. Under Count III, the award was $3,400.00 for actual damages in the loss of pigs, the raising of which was a business operation of respondents. Under Count IV, Elizabeth received an award of $4,500.00 actual and $9,500.00 punitive damages for her emotional distress and illness. Under Count V, John was awarded $5,000.00 actual and $22,500.00 punitive damages for his loss of Elizabeth's consortium and for her medical expenses. John was, in Count VI, awarded $500.00 actual damages individually for nuisance because of fumes and dust, and the deep pit left by appellant across the record from respondents' home; and upon the same theory both John and Elizabeth were jointly awarded $10,000.00 actual damages on Count VII.
Respondents say that Point I, which raises error of the court in submitting Elizabeth's claim for nervous and emotional illness; John's claim for loss of her services; in their claims for punitive damages, because there was no evidence that Elizabeth suffered any physical injury and that there was no evidence that appellant's actions were willful, wanton or malicious, was not preserved in its motion for new trial. A reading of paragraphs 25 and 26 of the motion shows that these issues were presented to the trial court and thus are preserved for review.
Appellant makes no claim that there was an insufficiency of evidence to show that it conducted blasting operations and that as a result there was damage to respondents' property located to the west of the strip mining operation. Appellant's real claim is that there was no evidence to support either the award for Elizabeth's nervous and emotional illness or John's award for his loss of her services, and the awards of punitive damages, because lacking is the element that appellant's conduct was under circumstances of malice, willfulness, wantonness or inhumanity.
The evidence concerning appellant's mining operation is this: It had a lease on land lying east of respondents' ten acre tract prior to the time respondents purchased it. The coal lay in two seams, each about 1 foot and 11 inches thick, and were covered by a limestone layer about 20 inches thick which was 30 to 35 feet below the surface. This limestone layer had to be removed to get at the first coal seam, and after the clay, 'shell' overburden, was removed with a power shovel or a dragline, it was generally necessary to use explosive to dislodge the rock in an upward direction. For the explosive, about 40 holes were usually drilled vertically through the rock to a depth of from 12 feet to about 14 feet and spaced about 25 feet apart. In each vertical hole there was placed one 25 pound bag of NCN (nitrocarbonnitrate, also referred to as ammonium nitrate and A.N.F.O.). Underneath the rock, holes, usually around 20 in number, were drilled horizontally to a depth of about 60 feet, which was the width of the trench from which coal was removed from each successive pit. The horizontal holes were spaced from around 15 feet to around 30 feet apart, and into each hole there was placed 10 to 15 25-pound bags of NCN. Fuel oil was used with the NCN, and dynamite and caps were used to initiate its explosion. A fuse line was used from the detonating device, and branches from it into a line in each hole, a delay mechanism was sometimes used to cause the explosions to occur 17/1000 of second apart.
Respondents first noticed appellant's blasting operation in 1968 at which time they talked to Shorty Powell, appellant's land man, about possible damage to their well. Later, as the mining operation moved closer, respondents noticed cracks appearing in the living and dining rooms of their home and Powell told them not to do anything to their home for 3 years. The mining operation continued toward their home, and blasting was occurring any time of the day or night, and Elizabeth started keeping a calendar log of some of the times the blasting was done, and of the severity of the explosions. She noted on the calendar dates the times of the explosions and their intensity, e.g., 'hard', 'very hard', 'hardest yet' and 'very, very hard.' By months, the calendar describes these explosions, which when related to appellant's map showing dates and distances from appellant's property line to the trenches (computing distance by the map scale of 100 feet to the inch) show this approximate information: July, 1969, 4 explosions, when the strip was about 2,000 feet away; August 1969, 14 explosions, one hard, 1,850 feet away; September 1969, 6 explosions, 1,700 feet away; October 1969, 13 explosions, 3 very hard, 1,550 feet away; November 1969, 33 explosions, 1 hard, 6 'big shots', 1,450 feet away; December 1969, 34 explosions, 1,300 feet away; January 1970, 63 explosions, 10 hard, 2 very hard, 1,150 feet away; February 1970, 97 explosions, 15 hard, 20 very hard, 1,000 feet away; March 1970, 47 explosions, 15 hard, 13 very hard, 850 feet away; April 1970, 48 explosions, 16 hard, 9 very hard, 1 'hardest yet', 750 feet away; May 1970, 96 explosions, 2 hard, 47 very hard, 3 very, hard, 600 feet away; June 1970, 87 explosions, 14 very hard; and on June 6, 1970, 3 very hard shots, and rocks fell from respondents' basement wall, 500 feet away; July 1970 (during which respondents were away for 9 days), 73 explosions, 23 hard, 10 very hard, 450 feet away; August 1970 (during which respondents were away 3 days), 37 explosions, 16 hard, 7 very hard, 350 feet away; September 1970, 85 explosions, 24 hard, 3 very hard, 300 feet away; October 1970, 66 explosions, 24 hard, 1 very hard--apparently about 1,000 feet to the northeast of appellant's property line in front of respondents' dwelling; on November 28, 1970, 3 days after suit was filed, there were 3 hard shots, about 250 feet from appellant's property line. Appellant stopped mining when it was 175 feet from its property line when ordinarily it would go to within 50 feet of the line. To the above distances, there should be added 125 to 175 feet, as the evidence variously shows, from the property line to respondents' dwelling. By Elizabeth's log on the calendar there were more than 800 explosions from July 1969, through December 1970, after which she got to the place where she would no longer keep the log. Appellant's records show far more explosions than Elizabeth recorded, but undoubtedly, since its mining trenches were running in a north-south direction, many were a sufficient distance away from respondents' home not to be noticed.
Elizabeth talked to Powell, Yates Storts and Howard Reddick, and to others of appellant's employees at the mine, and made more than a hundred calls to them about the blasting as it got closer. They did not cut down on the shots until after she called appellant's president in St. Louis at his home at 12:30 a.m., on March 1, 1970, but even after that call there was really no change in the blasting being done. Upon complaint, Reddick would merely respond, 'Okay, I will tell them,' (according to Elizabeth, Reddick showed a terribly lot of indifference to respondents' problem) and Powell would say, 'Those shots aren't that hard,' and would argue that it was the humidity, note the shot. Never did they give respondents an answer that indicated appellant was going to do anything about the blasting, which got worse and worse as appellant got closer to respondents' home. Prior to the time suit was filed, there was no notice to respondents that there was going to be blasting, but sometimes they would hear the warning whistle in the pit.
Elizabeth was awakened many times at night by the blasting, and the family was awakened and she would have trouble getting the children back to sleep. She lost so much sleep that she 'simply couldn't function any more'; she could hardly live with the blasting and became crabby, nervous and jumpy as did John. She took medication, and developed a lot of epigastric distress and an ulcer for which she took Maalox and ate a bland diet. She was hospitalized two weeks. The medical testimony is omitted from the record at appellant's direction, and no issue is made as to the cause or extent of Elizabeth's physical condition, but it is conceded that she suffered no direct physical injury or contact from the blasting (other than from vibrations and concussions).
The evidence of damage is not contested by appellant, except as to its claim that amounts awarded were 'excessive and so excessive as to...
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