Schaefer v. Frazier-Davis Const. Co., 24866.

• Decision Date: 07 March 1939
• Docket Number: No. 24866.,24866.
• Parties: SCHAEFER et al. v. FRAZIER-DAVIS CONST. CO.
• Court: Missouri Court of Appeals

125 S.W.2d 897

SCHAEFER et al. v. FRAZIER-DAVIS CONST. CO.

No. 24866.

St. Louis Court of Appeals. Missouri.

March 7, 1939.

Appeal from St. Louis Circuit Court; Michael J. Scott, Judge.

"Not to be reported in State Reports."

Action by George Schaefer and another against the Frazier-Davis Construction Company to recover for property damage caused by blasting. Judgment for plaintiffs for $5,000, and defendant appeals.

Reversed and remanded for a new trial.

Bishop & Claiborne, Williams, Nelson & English, George E. Heneghan, all of St. Louis, for appellant.

Henry C. Stoll, of St. Louis, for respondents.

BECKER, Judge.

Plaintiffs recovered judgment for $5000 against the defendant in an action for injury done to their property, alleged to have been caused by blasting on the part of defendant company in the construction of a sewer beneath certain public streets in the city of St. Louis. Defendant in due course appealed.

Defendant's first assignment of error is that the plaintiffs' second amended petition, upon which the case was tried, stated no cause of action, in that the petition failed to allege specific negligence on the part of defendant, as the cause of the alleged damage to plaintiffs' property, it being defendant's contention that a defendant cannot be held liable in an action ex delicto unless the plaintiff proves negligence. The point is without merit.

It has been held repeatedly in this state that blasting is an absolute necessity in excavating through beds of rock, in mining, in digging wells, in excavating foundations for buildings, in improving roads and streets, in digging canals, sewers, and in building roads, and in doing many other things, and therefore it is not under all circumstances to be regarded as a nuisance per se, nor condemned as being negligence as a matter of law. And in this state blasting is regarded as a work which one may lawfully do, providing he avoids injuring persons or property, and subject to his obligation to pay damages for any injury inflicted by his blasting. Gilbert v. Evens & Howard Fire Brick Co., 214 Mo. App. 207, 260 S.W. 790; Hoffman v. Walsh, 117 Mo.App. 278, 93 S.W. 853; Faust v. Pope, 132 Mo.App. 287, 111 S.W. 878; Scalpino v. Smith, 154 Mo.App. 524, 135 S.W. 1000; Johnson v. Kansas City Term. R. Co., 182 Mo.App. 349, 170 S.W. 456; Taylor v. Walsh, 193 Mo.App. 516, 186 S.W. 527. We adhere to what we have ruled in the Gilbert case, supra, to the effect that in actions for injuries to buildings alleged to have been caused by blasting operations, it is not necessary that plaintiffs allege specific acts of negligence or prove the same, but that the defendant must answer in damages for the consequences, if any, to plaintiffs' property which may have been caused by the blasting on the part of defendant, and that, regardless of the question of the degree of care which defendant exercised in so doing.

In light of our ruling that plaintiffs need not allege nor prove specific acts of negligence on the part of the defendant in an action for injury done to property by blasting on the part of defendant, there is no question but that the plaintiffs in the instant case adduced sufficient competent evidence to make a case for the jury.

Appellant contends that there was an improper joinder of parties plaintiffs, in that while plaintiffs' testimony was to the effect that there was a deed of trust upon the property, the holder thereof was not made a party to the action, and, therefore, the trial court erred in overruling defendant's requested instruction in the nature of a demurrer offered at the close of plaintiffs' case and again at the close of all the evidence.

It is no defense to an action for damages to real estate that the trustee or beneficiary in a deed of trust is not made a party to the action. "Undoubtedly defendant had the right to proceed by motion timely filed to have the trustee and beneficiary in the deeds of trust made parties to this suit, in order that all the rights of the parties in relation to each other and to the cause of action might be adjudicated and settled in one proceeding. * * * But the defendant, knowing of the existence of the deeds of trust, made no such motion until after the evidence was all in. It was then too late. * * *" Craig v. Kansas City Terminal R. Co., 271 Mo. 516, 522, 197 S.W. 141, 142; Blankenship v. Kansas Explorations, Inc., 325 Mo. 998, 30 S.W.2d 471.

Appellant urges error inhered in the trial court's action in permitting plaintiffs, over the timely objection and exception of defendant, to introduce the testimony of owners of other property in the neighborhood of where plaintiffs' property was located, as to alleged damage done to their property as the result of blasting on the part of...