Summers v. Tavern Rock Sand Co.

• Decision Date: 14 July 1958
• Docket Number: No. 1,No. 46381,46381,1
• Citation: 315 S.W.2d 201
• Parties: Richard A. SUMMERS and Mary E. Summers, Plaintiffs-Appellants, v. The TAVERN ROCK SAND COMPANY, a Corporation, Defendant-Respondent
• Court: Missouri Supreme Court

Page 201

315 S.W.2d 201

Richard A. SUMMERS and Mary E. Summers, Plaintiffs-Appellants, v. The TAVERN ROCK SAND COMPANY, a Corporation, Defendant-Respondent.

No. 46381.

Supreme Court of Missouri, Division No. 1.

July 14, 1958.

B. Richards Creech, St. Charles, for appellants.

Robert V. Niedner, Niedner & Niedner, St. Charles, John M. Goodwin, Hocker, Goodwin & MacGreevy, St. Louis, for respondent.

VAN OSDOL, Commissioner.

Plaintiffs, Richard A. Summers and Mary E. Summers, husband and wife, instituted this action in three counts against defendant, The Tavern Rock Sand Company, the operator of a quarry approximately three miles east of Augusta in St. Charles County. In Count I, plaintiffs sought recovery of $14,500 for damage to their dwelling and other improvements allegedly due to vibrations and concussions occasioned by defendant in blasting with high explosives in the operation of its quarry. In Count II, plaintiffs prayed for injunctive relief; and in Count III, plaintiffs sought recovery of $25,000 punitive damages. A jury found for defendant on Count I. Upon separate trial of the issues of Count II, the trial court found against plaintiffs and for defendant. The trial court had sustained defendant's motion for a directed verdict as to Count III at the close of plaintiffs' case. Plaintiffs have appealed from the ensuing judgment for defendant on all of the three counts stated.

Plaintiffs-appellants in their brief have stated nineteen points, some of which are divided into subpoints set out in lettered subparagraphs, many of which are general statements of abstract principles of law or mere references to pages of the transcript on appeal. Some of the allegations of error present nothing for appellate review, for example--that the verdict for defendant was a miscarriage of justice, and was against the weight of the evidence. Other points and subpoints are not supported by authorities and others are not developed in the printed argument. Definitely, plaintiffs' brief does not in most respects comply with Supreme Court Rule 1.08, 42 V.A.M.S., Pocket Parts, pp. 3-4. We shall consider the points and argument in supprot thereof which are sufficiently presented by brief to merit our consideration of them. Generally, these contentions are that the trial court erred in directing a verdict for defendant as to Count III; in the admission and exclusion of evidence; in instructing the jury; and in finding for defendant on the issues of Count II. The further point is urged that the trial court abused its discretion in determining the qualifications of expert witnesses.

At the outset in reviewing this case, it is helpful to generally state the law applicable here, and it is necessary to notice the factual theories of plaintiffs' case and of defendant's defense as supported by the evidence introduced by the parties respectively.

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. And in this state 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. 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; Annotation, 20 A.L.R.2d 1372, at pages 1383-1384.

Defendant is engaged in the production of silica sand--'we blast down the sand and crush it and process it, screen and dry it.' Defendant's quarry has been in operation since 1896, and is commonly called the 'Klondike.' Dynamite is used in blasting off an 'overburden' of limestone and dirt; then, with the same explosive, the yellow-sand rock formation is penetrated and 'blasted down'; and then blastingdown penetrations are made into the whitesand rock formation. Preparatory to blasting, holes are drilled in the rock and sticks of dynamite with primers and attached detonating caps are placed in the holes and are encased in screened sand. The explosive is 'set off' electrically.

The west fact of defendant's quarry is approximately 3,200 feet, and the east face is approximately 4,600 feet from plaintiffs' dwelling which is on the 'same ridge' to the northwestward of the quarry.

Plaintiffs introduced evidence tending to show that they acquired their property of 22 acres in 1949; the house thereon is of one story; has five rooms with bath; and is of 'native rock' construction. More recently plaintiffs have built a 14' X 22' concrete-block garage, and a cistern is in progress of construction. Plaintiffs had not noticed any cracks in the walls of their house and garage, or damage to their cistern prior to August 20, 1955. On that date they saw a crack in the front basement wall. Plaintiff husband 'pointed up' the crack with mortar, and on September 20th again noticed there was a 'slight hairline' crack where he had pressed in the mortar. In later weeks plaintiffs noticed other cracks in the basement wall, in the plastered walls of the bathroom, in the exterior walls of the house and garage, and also observed the cedar paneling and walnut trim in the living quarters were sprung out of alignment.

There was substantial evidence that vibrations and concussions, appreciable to the senses, were heard and felt at and in plaintiffs' dwelling which were coincident with blasting at defendant's quarry. Plaintiff wife testified that 'a lot of times I would sit on the couch in the living room and they would set off a blast at the quarry and the house would shake and the furniture would shake, the dishes would rattle and your feet would vibrate from the floor.'

Defendant-respondent makes no contention herein that plaintiffs did not make out a case for the jury on the issue of defendant's liability for actual damages as claimed in Count I; but defendant introduced evidence tending to show that plaintiffs' dwelling was built by one Riek, who (partially) completed the building in the years 1933-35; Riek had never designed or built a house and he had no plans and specifications--'just a mental picture.' The foundation was not level--it followed the contour of the ground. The footing was on an average a foot in depth and without reinforcing; the walls were laid up with native rock; and there was no 'bond' of the masonry. The concrete-block masonry of walls of the garage was not properly bonded. Some of the lumber which was used in the framework had been sawed from pilings which Riek had salvaged from the Missouri River. A steel beam on which the studding rested was supported by a wooden post in the basement.

Several witnesses for defendant testified they had seen cracks in various parts of plaintiffs' house prior to August, 1955. Two witnesses said they had observed the cracks in 1934 or 1935 while the house was in progress of construction. There was evidence tending to show there was a drought in the area in the summer and fall of 1955. Defendant's experts testified of the effects of weather conditions and improper construction in causing a structure such as plaintiffs' dwelling to 'settle' with resultant fissures and cracks in the structure. The experts were of the opinion the vibrations or concussions of the blasts at defendant's quarry could not have occasioned the damage to the improvements. November 8, 1956, a test blast was made at the quarry and the vibratory or undulating or seismic effect of the blast was measured by instruments, including a seismograph, set in operation at plaintiffs' dwelling. The charge of the explosive used in the test blast was said to be comparable to that used in the largest of defendant's 'blasting down,' rock-penetrating operations at the quarry. It was determined, according to the testimony of defendant's expert witness, that the vibration and concussion of the blast were insufficient to in any way adversely affect or damage the weakest part of the structure of plaintiffs' improvements. Such a vibration was said to be considerably less than that which would be caused by walking on the floor.

The evidence we have detailed shows the factual theories of the parties, plaintiffs and defendant, were divergent only on the cause of the damage to plaintiffs' improvements. Beyond question the improvements were from some cause or causes cracked and broken. Plaintiffs were endeavoring to establish that the damage was due to defendant's blasting operations, and defendant was endeavoring to defensively demonstrate that the damage was not due to its blasting but was due to weather conditions and the inferior construction of the improvements. The instructions (examined infra) given at the request of the parties submitted the parties' conflicting theories on the basic factual issue as to what caused the damage, and, as stated, the jury found for defendant. Now, if the issue of plaintiffs' claim for actual damages as stated in Count I was tried and submitted without prejudicial error, the sustention of defendant's motion for a directed verdict as to Count III could not have been prejudicial to plaintiffs, since punitive damages could have been but incidental to defendant's liability for actual damages. And, furthermore, all contentions of error in the admission and exclusion of evidence on the issue for actual damages and contentions of abuse of discretion in passing on the qualifications of experts whose testimony bore upon that issue could not be prejudicial to plaintiffs. This is because, as stated, the jury found for defendant on the issue of defendant's liability. The jury did not even reach the point of deliberating on the issue of damages. Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, and cases therein cited; Durmeier v. St. Louis County Bus Co.,...