Smith v. Yoho

Citation324 P.2d 531
Decision Date25 March 1958
Docket NumberNo. 37859,37859
PartiesS. R. SMITH, Plaintiff in Error, v. Rosemary YOHO, Administratrix of the Estate of Jack C. Yoho, Deceased, Defendant in Error.
CourtOklahoma Supreme Court

Syllabus by the Court.

1. Where an insurance company pays to its insured a loss occasioned by the wrongful act of a third party, and the amount of the damage to the property exceeds the amount paid by the insurance company, the insured may bring an action in his own name against the wrongdoer for the full amount of the loss.

2. In action by property owner for damages to property arising out of blasting operations conducted by defendant, plaintiff was not required to establish negligence in defendant's conduct in order to effect recovery.

3. Evidence reviewed and held to sustain judgment in favor of plaintiff for property damage resulting from blasting operations carried on by defendant.

Appeal from the Court of Common Pleas of Tulsa County; Lloyd McGuire, Judge.

Action by property owner for damage to building alleged to have resulted from blasting operation carried on by defendant in construction of sewer line. From a judgment for plaintiff, defendant appeals. Affirmed.

Houston, Klein & Davison and John S. Treadway, Tulsa, for plaintiff in error.

William P. Huckin, Jr., Dickson M. Saunders, of Doerner, Rinehart & Stuart, Tulsa, for defendant in error.

WILLIAMS, Justice.

This action was brought by Rosemary Yoho, hereinafter referred to as plaintiff, against S. R. Smith, hereinafter referred to as defendant, to recover certain property damage allegedly sustained by plaintiff as a result of certain blasting operations conducted by defendant in connection with the laying of a sewer line. After a trial to a jury, a verdict was returned and judgment entered in favor of plaintiff in the amount of $616, and defendant has perfected this appeal.

As his first proposition of error defendant asserts that the court erred in overruling his motions for a mistrial. These motions were made in connection with the admission of certain testimony, which defendant contends was hearsay, and the opening statement of counsel for plaintiff in which it was stated that the testimony complained of would be given. Plaintiff testified that she was present in the building alleged to have been damaged at the time the blasting occurred, and that when the blasting started, it shook the building and the fluorescent light tingled; that immediately after the blasting, an employee of defendant who had been working right in front of the building and whom she took to be the superintendent on the job, came over to the building and went with her around to the side thereof where they both observed the mortar still falling out of the building where it had cracked, at which time such employee stated that he was sorry it had happened, but that it would be taken care of. Defendant asserts that the last statement was hearsay. The statement complained of was admissible as part of the res gestae. Huffman v. Gaylor, Okl., 267 P.2d 564; Jackson v. Hedlund, 157 Okl. 14, 10 P.2d 385. In any event, its admission could not have resulted in sufficient prejudice to justify or require the granting of a mistrial, in view of the testimony, given without objection, that defendant himself stated that he would take care of the damage. The court did not err in overruling the motions for mistrial.

As his second proposition in error, defendant contends that the court erred in overruling defendant's demurrer to plaintiff's evidence and in rendering judgment for plaintiff and in overruling the motion for a new trial because plaintiff was not the real party in interest; because plaintiff did not establish a causal connection between the damage suffered and the blasting; because plaintiff failed to allege and prove negligence on the part of defendant; because the judgment was for more than the actual damages; and because the verdict was clearly against the weight of the evidence. We find no merit in any of these complaints, but...

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9 cases
  • Gaines-Tabb v. Ici Explosives Usa, Inc., CIV-95-719-R.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • July 2, 1996
    ...applied absolute or strict liability to users of explosives whose use results in damage to others or their property. See Smith v. Yoho, 324 P.2d 531, 533 (Okla.1958); Seismograph Service Corp. v. Buchanan, 316 P.2d 185, 187 (Okla.1957). Accord Ward v. H.B. Zachry Construction Co., 570 F.2d ......
  • Garland Coal & Mining Company v. Few, 6026.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 27, 1959
    ...Oil Producing Co. v. McClain, 191 Okl. 41, 126 P.2d 530; Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185;4 Smith v. Yoho, Okl., 324 P.2d 531; Superior Oil Co. v. King, Okl., 324 P.2d 267 F.2d 789 While seemingly conceding that the Oklahoma decisions have construed Art. 2, § 23 of ......
  • Wetsel on Behalf of Wetsel v. Independent School Dist. I-1, I-1
    • United States
    • Supreme Court of Oklahoma
    • September 13, 1983
    ...Okl., 577 P.2d 1295, 1298 [1978] and (b) civil liability of a user of explosives falls under the same rubric. Smith v. Yoho, Okl., 324 P.2d 531, 533 [1958]; Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185, 187 [1957]; Tibbets & Pleasant v. Benedict, 128 Okl. 106, 261 P. 551 [1927]......
  • Ward v. H. B. Zachry Const. Co., 76-1690
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 6, 1978
    ...Exploration Company v. Reynolds, 344 P.2d 275, 278 (Okl.1959); Superior Oil Company v. King, 324 P.2d 847, 848 (Okl.1958); Smith v. Yoho, 324 P.2d 531, 533 (Okl.1958); Seismograph Service Corporation v. Buchanan, 316 P.2d 185, 186-187 (Okl.1957); Tibbets & Pleasant v. Benedict, 128 Okl. 106......
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