Smith v. Aldridge
| Decision Date | 17 April 1962 |
| Docket Number | No. 30776,30776 |
| Citation | 356 S.W.2d 532 |
| Parties | Thomas Arthur SMITH and Josephine Marie Smith, Plaintiffs-Respondents, v. R. G. ALDRIDGE, d/b/a Aldridge Construction Company, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Carstarphen & Harvey, Harry Carstarphen, Hannibal, for defendant-appellant.
Rendlen & Rendlen, Hannibal, McIlroy & Millan, James Millan, John M. McIlroy, Bowling Green, for plaintiffs-respondents.
DOERNER, Commissioner.
This case recently came to the writer by reassignment. Plaintiffs, husband and wife, were the owners of a house and lot in Hannibal, Missouri, numbered 3412 Navajo Street. Defendant, a contractor, constructed a part of Highway 36 over Navajo Street, in front of and adjoining plaintiffs' property, during the course of which defendant used explosives to remove rock and debris. The case was tried on plaintiffs' second amended petition, which contained three counts. In Count I, plaintiffs sought recovery of $6,500 for actual damages to their improvements and land allegedly due to vibration and to rocks and debris being cast thereon by defendant's blasting, as well as punitive damages of $10,000. In Counts II and III, plaintiffs Thomas Arthur Smith and Josephine Marie Smith prayed for damages of $1,000 and $5,000, respectively, for mental pain and anguish each claimed to have suffered by reason of the blasting. Verdict and judgment below was for plaintiffs on Count I for actual damages of $3,500; for defendant, on Count II; and for plaintiff Josephine Marie Smith for $1,300 on Count III. After his post-trial motions proved unavailing, defendant appealed.
Neither the contract between defendant and the State Highway Commission, nor the plans and specifications for the work to be done pursuant thereto, were introduced in evidence and hence are not before us. It appears from the record, however, that part of the work undertaken by defendant involved the making of a cut 350 feet wide and 35 feet deep through dirt and rock, on the right-of-way adjoining plaintiffs' property. Plaintiffs introduced substantial evidence that the blasts set off by defendant occurred frequently during the months of January, February, March and April, 1959, and at varying times during the day; that on occasion defendant would warn plaintiffs before the explosives were detonated, but that often no warning would be given; that in addition to the resulting noise and concussion, the blasts caused vibrations to occur which jarred and shook plaintiffs' home; that the blasts also caused rocks, some as large as a football, and other debris to be thrown onto the plaintiffs' property and against the improvements thereon; and that the damage to plaintiffs' home and improvements resulting from the blasts included cracks in the ceiling, floors, walls and foundation, broken shingles and a trellis, holes through the garage roof and through the storm door and the front door, bricks knocked off the chimney, and the littering of plaintiffs' land. Defendant's evidence was that the amount of explosives used could not have caused any vibration sufficient to have shaken plaintiffs' house and that any damage claimed to be due to such a cause was the result of poor construction of the structure. Defendant also introduced evidence that pole mats were used to prevent rocks and debris from being thrown by the explosives, but its own evidence revealed, inferentially at least, that such means of prevention was not wholly successful, and plaintiffs showed that they were quite ineffectual. Additional facts will be stated in connection with the matters raised by defendant on appeal.
In his brief defendant has enumerated seven principal points relied on, each of which, in turn, is subdivided in from two to five subpoints. Faced with the task of reviewing this plethora of alleged error, it may be helpful to state at the outset some of the principles of law applicable to actions involving explosives. 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. * * *' Schaefer v. Frazier-Davis Const. Co., Mo.App., 125 S.W.2d 897, 898. The cases from other jurisdictions are not in harmony on the question of liability for property damage from concussion or vibration resulting from blasting. In some it is held that liability depends on whether the defendant was negligent. Booth v. Rome, W & O. T. R. Co., 140 N.Y. 267, 35 N.E. 592, 24 L.R.A. 105. In other states the rule of absolute liability is followed, and it is held that the defendant is liable for damage to the plaintiffs' property caused by concussion or vibration, irrespective of negligence. Wendt v. Yant Const. Co., 125 Neb. 277, 249 N.W. 599; Watson v. Mississippi River Power Co., 174 Iowa 23, 156 N.W. 188, L.R.A.1916D, 101. Where, however, the injury to plaintiffs' premises results from rocks and debris thrown thereon by the blasting, it is generally held, even in those states requiring negligence to support a recovery for concussion or vibration, that a trespass results for which there is liability, regardless of negligence. This distinction in such jurisdictions appears to be based on the historical difference between actions on the case and trespass, 20 A.L.R.2d 1372, and has been sharply criticized by many courts which have adopted the rule of absolute liability. Wendt v. Yant, supra; Watson v. Mississippi River Power Co., supra.
While there seems to have been some doubt on the part of the courts in the early cases in Missouri as to whether it was necessary to prove negligence to warrant a recovery for personal injuries from blasting, Hoffman v. Walsh, 117 Mo.App. 278, 93 S.W. 853; Knight v. Donnelly, 131 Mo.App. 152, 110 S.W. 687, from the first case in this state involving damages from vibration, Faust v. Pope, 132 Mo.App. 287, 111 S.W. 878, our appellate courts have uniformly held that '* * * when damage to property is by vibration or concussion from blasting there is an invasion of the premises and liability irrespective of negligence quite as if the blasting had cast rocks or debris thereon. * * *' Summers v. Tavern Rock Sand Co., Mo., 315 S.W.2d 201, 203. And see Stocker v. City of Richmond Heights, 235 Mo.App. 277, 132 S.W.2d 1116; Taylor v. Walsh, 193 Mo.App. 516, 186 S.W. 527; Johnson v. Kansas City Terminal R. Co., 182 Mo.App. 349, 170 S.W. 456.
With these rules in mind, we turn to an examination of the matters assigned as error by the defendant. Reviewing them in the chronological sequence in which they occurred, rather than in the order followed in the brief, the first matter for consideration is defendant's complaint that the court erred in striking from his answer, on motion of plaintiff, what defendant denominates as his defense of 'contractor-government immunity.' The allegations regarding the claimed defense of immunity are much too lengthy and verbose to be quoted herein. It is sufficient for our purpose to say that the substance of defendant's plea, and the tenor of his argument on appeal, is that the State Highway Commission would have been immune from any liability for the damage suffered by plaintiffs had it undertaken the construction of the highway; and that the immunity which the State Highway Commission would have enjoyed under such circumstances extended to the defendant in carrying out his work for the Commission. The premise that the State Highway Commission would not be subject to liability for the tortious acts of its agents and employees in constructing the highway may be conceded. Bush v. State Highway Commission of Missouri, 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Commission of Missouri, Mo.App., 48 S.W.2d 78; Rector v. Tobin Construction Co., Mo.App., 351 S.W.2d 816. Those cases are based on the doctrine that the State of Missouri is not subject to tort liability without its consent, and that the State Highway Commission, as a subordinate branch of the executive department, is therefore immune. But the defendant is neither the State nor the State Highway Commission, and it does not follow as a matter of course that he is absolved from all liability merely because the work in which he was engaged was performed pursuant to a contract with the Commission.
In support of his claim of immunity defendant relies principally on the cases of Nelson v. McKenzie-Hague Co., 192 Minn. 180, 256 N.W. 96, 97 A.L.R. 196, and Pumphrey v. J. A. Jones Const. Co., 250 Iowa 559, 94 N.W.2d 737. When carefully considered it is apparent that neither case is in point. The cause of action in Nelson v. McKenzie-Hague Co., was predicated on a statute defining a private nuisance. As stated by the court, the precise point presented in Pumphrey v. J. A. Jones Const. Co., 94 N.W.2d 739, was:
'The narrow question before us is whether the independent contractor is entitled to share the immunity of the sovereign with which he has contracted if he carries out his operations in accordance with the terms of the agreement and without negligence, even though the procedures required by the contract and approved by the government may result in incidental damage to third persons. * * *'
In the instant case defendant did not plead that his contract with the State Highway Commission made it mandatory upon him to use explosives. Nor did he allege that the manner in which he employed the explosives was in strict accordance with the terms of the contract or at the specific directions of the Commission's engineer, with whose orders he was required to comply, as in Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924. All that defendant alleged in the instant case was that the use of explosives was 'the only way known to man' to remove the rock, and that the blasting was done under the supervision and inspection of the...
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