Thurmond v. Ash Grove White Lime Association

• Decision Date: 14 May 1907
• Citation: 102 S.W. 617,125 Mo.App. 73
• Parties: THURMOND, Appellant, v. ASH GROVE WHITE LIME ASSOCIATION, Respondent
• Court: Missouri Court of Appeals

102 S.W. 617

125 Mo.App. 73

THURMOND, Appellant, v. ASH GROVE WHITE LIME ASSOCIATION, Respondent

Court of Appeals of Missouri, St. Louis

May 14, 1907

Appeal from Greene Circuit Court.--Hon. Jas. T. Neville, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Wright Bros. & Blair and L. H. Musgrave for appellant.

In directing the jury to find no more than nominal damages, in any event, the court erred. For it was the jury's business to fix the amount of the damage, and not the court's. Berlin v. Thompson, 61 Mo.App. 243; Spencer v. Railway, 120 Mo. 159. It was error to instruct against a recovery for the injuries to the house and cistern. Quarry Co. v. Hay, 2 N.Y. 162; Quarry Company v. Tremain, 2 N.Y. 163; St. Peter v Denison, 58 N.Y. 421; Morgan v. Bowen, 62 Hun 623, 17 N.Y.S. 23. Again, it "has been held that working quarries by the use of gunpowder to the injury of property in the vicinity, gives a right of action." Booth v Railway, 140 N.Y. 267, 35 N.E. 596; Tiffin v McCormack, 34 Ohio St. 638; Scott v. Bray, 3 Md. 431. Under the circumstances, even if proof of negligence was required, that question should have gone to the jury on the evidence. Ulrich v. McDonald, 1 Hilt. (N. Y.) 251; Newell v. Woolfolk, 91 Hun 211, 36 N.Y.S. 327; Klepsch v. McDonald (4 Wash.), 30 P. 993.

A. H. Wear, J. T. Hayden and Wm. H. Horine for respondent.

OPINION

GOODE, J.

This appeal was taken from a judgment given for defendant in an action to recover for injuries to plaintiff's farm, and the house, cistern and fencing thereon, alleged to have been caused by blasting in defendant's quarry. The petition avers that on a day not stated in 1905, "defendant, by its agents and servants placed in the rock in its aforesaid quarries, quantities of explosives and discharged the same, and wrongfully and recklessly and negligently by shaking the earth thereby and by the shocks and concussions by said explosions and discharges produced, defendant shook and cracked the plastering in plaintiff's said house and thereby rendered the same useless and unsightly, to the plaintiff's great damage; and also by the same acts and like ones, defendant shook and cracked the cement on the walls of plaintiff's said cistern and thereby decreased the capacity of said cistern and greatly injured said cistern thereby, greatly to plaintiff's damage; and defendant by its agents and servants by the use of explosives in said quarries and by blasting, threw and caused to be thrown quantities of rock and stone upon plaintiff's said farm, thereby injuring plaintiff's said farm and breaking plaintiff's fences, all to the damage of plaintiff in the sum of $ 250." Plaintiff owned the farm and improvements but had for several years lived in the town of Ash Grove, having rented the farm to his son who was in possession and resided in the house. Prior to the incidents complained of plaintiff had leased a part of his land to defendant for a quarry, and later had sold the leased tract for the same purpose. If the injurious blasting was not done on the land defendant had bought from plaintiff it was done in a quarry which covered a portion of said land. This quarry was between a quarter and an eighth of a mile from the farmhouse and was opened in October, 1904. Blasting in it was carried on without damaging the farm or improvements until the next spring. The particular explosions alleged to have been harmful, occurred, plaintiff's son swore, on the first three days in May, while defendant was blasting for a track (a railway or tram track, we suppose) at the north end of the new quarry. Afterwards blasting was again carried on with no bad results. Witnesses swore that at the time stated "there was some unusually heavy shooting;" that plaintiff's house was jarred and the windows caused to rattle, some plastering shaken from the walls and ceilings of the rooms and the cement cracked in the cistern. The son's wife swore that one night an explosion awakened her from sleep and the next morning she saw plastering on the floor. Rocks were thrown on plaintiff's farm and on the fence between plaintiff's land and defendant's quarry. This was a wire fence and the wires were bent down in several places, but no witness undertook to estimate the cost of repair, and probably it was too insignificant to be estimated. Approximate proof was made of the damage to the house and cistern. In instructing the jury the court limited the verdict for plaintiff to one for nominal damages and this was allowed only in the event the jury found rocks were thrown on plaintiff's premises to his injury. Damages for injury to the house and cistern were refused. A verdict was returned for defendant.

It is contended by plaintiff's counsel that the court erred in requiring the jury to find rocks were thrown on plaintiff's farm to his injury, in order to find a verdict in his favor. We understand counsel to mean that hurling rocks on the premises was a trespass and whether injury was done or not, plaintiff was entitled to nominal damages. Had he been in possession of the farm, likely this proposition would be sound without regard to whether the blasting was carefully done. [Hay v. Cohoes Co., 2 N.Y. 159; Tremaine v. Id., 2 N.Y. 162.] But plaintiff's son was in possession and therefore plaintiff had no right to recover for a bare entry. It was not proved the falling rocks injured the farm except by bending the wires of the fences in two or three places and as said, there was no evidence as to the extent of the loss thus occasioned. For an injury to the freehold or inheritance, plaintiff might recover even though his son was in possession. [Parker v. Shackelford, 61 Mo. 68; Arnold v. Bennett, 92 Mo.App. 156.] Hence if substantial harm had been done to the farm by falling rocks, we might hold the instruction for nominal damages was erroneous. But as no harm was proved, plaintiff was not entitled even to a nominal verdict on that score.

On a proper pleading, supported by relevant evidence, plaintiff was entitled to recover for damage to the house and cistern caused by concussions. The legal problem in this connection is whether or not his right to recover for this damage depended on his proving negligence in the blasting or was made out by merely showing the freehold was injured. It has been said the law on this subject is not well settled. [12 Am. & Eng. Ency. Law (2 Ed.), 508.] Two doctrines of the law approach so closely at this point that it has been found difficult to enforce one without impugning the other. One of these doctrines is that the use of his land by the owner in a lawful business and without trespass or negligence does not lay him liable for casual injury to another as a result of the use. [Penn Coal Co. v. Sanderson, 113 Pa. 126; Smith v. Fenwick, 7 C. B. 515.] The other doctrine is that a man must enjoy his own property in such a manner as not to injure the property of others or otherwise invade their rights. The question has been discussed in many cases involving the liability of defendants under various circumstances; and, of course, the influence of the different decisions as precedents, hinges on the similarity of their respective facts to those of the case under advisement. Sometimes the injuries sued for were connected with a trespass, as when stones or inflammable material were hurled on adjacent property; and in such instances the defendants were usually held liable without regard to care or carelessness in doing the work. [Hays v. Cohoes Co., Tremaine v. Id., supra; St. Peter v. Denison, 58 N.Y. 416; Sullivan v. Dunham, 161 N.Y. 290; 47 L. R. A. 715, 55 N.E. 923; Tiffin v. McCormack, 34 Ohio St. 638; Scott v. Bay, 3 Md. 431.] But occasionally when the facts were as stated, liability has been made to turn on negligence. [Gates v. Latta, 117 N.C. 189, 23 S.E. 173; Murphy v. Lowell, 128 Mass. 396; Cary v. Morrison, 129 F. 177, 65 L. R. A. 659.] In other instances judgments went against defendants on the theory that the hurtful explosions or substances stored on the premises of the various defendants were inherently dangerous considering their nature and surroundings; therefore evidence of negligence. It appeared usually that the explosions were in a densely inhabited district, or that an explosive of needless...