Terry & Wright of Kentucky v. Crick

• Decision Date: 30 June 1967
• Citation: 418 S.W.2d 217
• Court: United States State Supreme Court — District of Kentucky
• Parties: TERRY & WRIGHT OF KENTUCKY, Appellant, v. Sarah CRICK et al., Appellees.

Page 217

418 S.W.2d 217

TERRY & WRIGHT OF KENTUCKY, Appellant, v. Sarah CRICK et al., Appellees.

Court of Appeals of Kentucky.

June 30, 1967.

Rehearing Denied Sept. 29, 1967.

Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellant.

Richard L. Frymire, Moore, Morrow & Frymire, Madisonville, for appellees.

EDWARD P. HILL, Judge.

This is an appeal from a judgment of $3250 for damages claimed by appellees to have resulted from blasting done in connection with the making of a cut for the Western Kentucky Parkway that runs near appellees' property.

Nineteen 'questions' are 'presented' by appellant on this appeal. In questions I, II, III, IV, V, VI, and XV, appellant takes the position that the pleadings, evidence, and instructions should have separated the damages caused from flying rock (actual trespass) from those caused by concussion and vibration from blasting. Appellant argues that under our case law, proof of negligence is required in cases for damages from concussion or vibration from blasting. Numerous cases are cited, including the Jacobs case hereinafter referred to. The trouble with this argument is that a few months before the date of appellant's brief this court overruled Jacobs in Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755, 758, (1965) by stating:

'For reasons difficult to understand, we have held it necessary to prove negligence in blasting cases where the damage was caused by concussions or vibrations as opposed to the casting of physical objects on the plaintiff's land. See Aldridge-Poage Inc. v. Parks, Ky., 297 S.W.2d 632; Marlowe Construction Company v. Jacobs, Ky., 302 S.W.2d 612; and cases cited therein. The soundness of this theory was questioned in both of those opinions and it was repudiated in the two cases cited in the preceding paragraph. In the latter it was recognized that an invasion of another's right to the use and enjoyment of his property constituted a trespass and the exercise of due care is not a defense. The present Kentucky law is that a plaintiff, claiming to have been injured by the creation or maintenance of a nuisance, may be entitled to relief without allegation or proof of negligence on the part of the defendant. the Parks and Jacobs cases, just above cited, and those of similar import, are expressly overruled to the extent they adopted a contrary rule.'

Question VII, raised by appellant, relates to certain questions and arguments of counsel for appellees in regard to 'inconvenience' suffered by appellees during the five months blasting was in progress. Appellees' attorney pointed out to the jury that this element was not compensable; so did the trial court in its admonition to the jury. Actually it was difficult to prevent the jury from realizing that there was some inconvenience sustained. There was evidence that windowpanes were replaced and again blown out the same day. On the whole, we cannot say the references to 'inconvenience' were prejudicial.

Appellant's objections VIII and IX complain of evidence of Henry Lile, father of appellee Sarah Crick, in regard to a conversation he had with Lawrence Terry, president of the appellant company, in which Mr. Terry told him that in event his company did any damage to the Lile house, they would 'build him a new house if they tore it down.' Objection is also made to the reading of the deposition of Jack Reese, project superintendent of the appellant company.

Mr. Lile's evidence, even if unexplained, did not amount to an admission of liability on the part of Mr. Terry. He said 'if' we tear it down. Furthermore, Mr. Terry explained the conversation by saying it was in a 'jocular' vein as was usual between the two of them. We conclude this evidence was not prejudicial.

The reading of the deposition of Jack Reese was authorized by CR 26.04. The return on the subpoena for Reese showed he was in Indiana.

Questions X and XI have reference to the ruling of the trial court overruling to the ruling of the trial court overruling Lile a party plaintiff. Mr. Lile, father of appellee Sarah Crick, moved his house from a separate tract condemned by the Department of Highways onto the land of his daughter under some family arrangement undisclosed in the record. Mrs. Crick admitted the house belonged to her father and that she might pay him a part of any amount recovered. However, the Lile house was situated upon and attached to the tract owned and described by Sarah Crick in her complaint. Henry Lile's house thereby became a part of Sarah Crick's realty. Cf. Tarter v. Turpin, Ky., 291 S.W.2d 547, 60 A.L.R.2d 1205. Certainly the...