Seismograph Service Corp. v. Buchanan

• Decision Date: 01 October 1957
• Docket Number: No. 37562,37562
• Citation: 316 P.2d 185
• Parties: SEISMOGRAPH SERVICE CORPORATION, a corporation, Plaintiff in Error, v. W. H. BUCHANAN and Ora G. Buchanan, husband and wife, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 185

316 P.2d 185

1957 OK 217

SEISMOGRAPH SERVICE CORPORATION, a corporation, Plaintiff in Error, v. W. H. BUCHANAN and Ora G. Buchanan, husband and wife Defendants in Error.

No. 37562.

Supreme Court of Oklahoma.

Oct. 1, 1957.

As Corrected Oct. 14, 1957.

Syllabus by the Court

1. Where the facts show that a lawful business is being conducted in such manner as to constitute a private nuisance, causing substantial injury to property, the aggrieved party may recover compensation for the injury sustained.

2. Where there is any substantial evidence reasonably tending to sustain a jury's verdict and judgment based thereon, such verdict and judgment will not be reversed on appeal.

3. Interest cannot be recovered upon unliquidated damages where it is necessary for a judgment or verdict to be had in order to ascertain the amount due.

Appeal from the District Court of McClain County; Elvin J. Brown, Judge.

Action for damages to property arising out of an explosion involved in seismograph explorations. Judgment for plaintiffs, defendant appeals. Affirmed as modified.

Joseph L. Hull, Jr., James B. Diggs, and Edwin S. Hurst, Tulsa, for plaintiff in error.

Hardin Ballard, Purcell, for defendants in error.

PER CURIAM.

In August, 1954, plaintiff in error, defendant below, was conducting seismograph exploration operations in the vicinity of the home of the defendants in error, plaintiffs below, on behalf of a corporation owning leases in that area. Further reference to the parties will be by their trial court designation. Plaintiffs' evidence, in substance, was that on a day when they were both at home, they became aware of the defendant's operations by reason of an explosion which they heard and felt; that approximately four minutes later a second explosion occurred, equally as strong as the first, both of which made their house 'jump'; that they observed dirt and water from the hole blown into the air over the orchard by the force of the explosion; that at the second explosion they observed that from the walls of their home 'little bits of cement flew as though you had them in your hand and just throwed them, broadcast,'; that a cursory examination of the house disclosed fresh cracks in the concrete block walls; that Mr. Buchanan immediately proceeded to the point at which the explosion originated, which was across the road from his house and about 600 feet distant on property belonging to another person; that he informed the defendant's personnel that his house had been damaged, whereupon two of the employees returned with him to examine the house; that they discovered fresh cracks in the walls of the house; that in addition to the damage to the house, examination disclosed damage of a substantial nature to their cellar and dairy barn; that these improvements were an even greater distance from the point of explosion than was their house. The plaintiffs' evidence also revealed that the house had been built in 1947 and that due to its faulty construction several cracks had occurred in the walls of the building prior to the damage which was testified to have occurred at the time of the explosions created by the defendant.

The plaintiffs' petition and the court's instruction to the jury proceeded on the theory that this was not an action in which it was necessary for the plaintiff to establish negligence in the defendant's conduct. Defendant asserts that this theory of liability without negligence is not applicable to this action and that the court erred in giving this instruction and in failing to give its requested instruction requiring a finding of negligence.

Although, as defendant points out, we have not heretofore been called upon to consider liability for explosions in seismograph operations, the legal principles applicable are well established in this jurisdiction. In the early case of City of Muskogee v. Hancock, 58 Okl. 1, 158 P 622, 623, L.R.A.1916F, 897, explosives had been used and caused damage, and it was said:

'* * * The nature and power of dynamite or blasting powder as an explosive have been demonstrated by universal experience, and it is a matter of common knowledge that their use as an explosive is intrinsically dangerous, and of this the courts will take judicial notice. * * *'

The court also concluded that the technical distinction between a physical trespass and damage from blast or vibration would not prevail to deny a recovery. That case firmly established in this jurisdiction the principle that the use of explosives comes within that classification of conduct, liability for which is not predicated on the negligence of the actor. As Professors Foster and Keeton have noted, ultrahazardous conduct causing damage creates a private nuisance for which the plaintiff may recover without regard to the standard of care employed by...