Wiley v. Pittsburg and Midway Coal Min. Co., WD

• Decision Date: 12 May 1987
• Docket Number: No. WD,WD
• Parties: Alvin WILEY, et al., Respondents, v. The PITTSBURG AND MIDWAY COAL MINING COMPANY, Appellant. 38239.
• Court: Missouri Court of Appeals

Page 228

729 S.W.2d 228

Alvin WILEY, et al., Respondents, v. The PITTSBURG AND MIDWAY COAL MINING COMPANY, Appellant.

No. WD 38239.

Missouri Court of Appeals,

Western District.

May 12, 1987.

Harold A. Kyser, Butler, for appellant.

H. David Barr, Kansas City, Kan., Lawrence M. Berkowitz, Kansas City, Mark D. Hinderks, Overland Park, Kan., for respondents.

Before CLARK, C.J., and NUGENT and LOWENSTEIN, JJ.

CLARK, Chief Judge.

Respondents, Phillip and Donna Pieratt and J.A. and Dorothy Payne, were plaintiffs below in a suit for property damages alleged to have been caused by explosive charges set off by appellant, The Pittsburg and Midway Coal Mining Company, (P & M), during the course of its coal mining operation. ¹ The Pieratts had judgment for $22,200.00 and the Paynes recovered $37,500.00, all for structural damages to buildings on the plaintiffs' lands.

P & M presents various claims of trial error including the contention that the trial court erred in overruling its objection to the testimony of plaintiffs' expert witness responding to a hypothetical question. We agree that the evidence was improperly received and therefore reverse the judgment and remand the case for a new trial.

With the sole exception of the dispute as to whether the damage to plaintiffs' structures and improvements was caused by P & M's mining of coal, the facts of the case were not in contest. P & M operates a surface coal mine on 28,000 acres of land in west central Missouri. The process used is strip mining in which the soil and rock overlying the coal deposits are removed and the coal is extracted. The rock and soil overburden are loosened by explosive charges and that material is then removed by use of a dragline.

Plaintiffs Pieratt own acreage and farm structures north of Amoret, Missouri. The nearest building on their property to the P & M mine is about one-half mile distant. Plaintiffs Payne conduct a dairy and beef farming business, also located north of Amoret, approximately one mile from the mine. The general nature of the claims by the Pieratts and the Paynes was for damages to the structures on their respective properties.

According to a P & M employee, the method used to remove the overburden involves drilling a bore hole ten inches in diameter to a depth of 45 or 50 feet until coal is reached. A charge of ammonium nitrate weighing about 600 pounds is placed in the hole and detonated. Vibrations from the blast travel at speeds of 10,000 to 20,000 feet per second. The magnitude and shape of the vibration stress wave depends on the type and power of the explosive and the density of the rock.

Both the Pieratt and Payne witnesses testified that when charges of explosives were set off at the P & M mines, the buildings on their property would shake, the windows would vibrate and dishes would fall. Each kept diaries recording the shocks experienced from the blasting. Calendars for the years 1984 and 1985 were introduced in evidence as exhibits and bore notations such as: "Blast 5:33 Windows rattled & floor vibrated;" "2:10 Bad Blast 2:30 Mild;" "10:15 Big Blast;" "10 AM Heard Blast but felt nothing--again 10:45" In some months, no shocks were recorded. In others, particularly in 1984 as many as six or eight notations of explosions would be recorded in a single month.

Evidence of damage to the Pieratt and Payne properties came from testimony by the plaintiffs as to cracks in concrete, mortar fallen from joints in masonry walls, nail pops and cracks in sheetrock and bulges in walls. They also offered evidence by a real estate appraiser as to diminished market value attributable to the damage. P & M disputes the valuation evidence as well as the question of causation, but not the presence of the structural imperfections and indicia of disturbance and subsidence.

The first point of appeal concerns the receipt in evidence on behalf of plaintiffs, over objection by P & M, of testimony by Warren Mitchell, an expert witness called to give his opinion regarding the probable cause of plaintiffs' property damage. Despite some latent indication of disparagement by P & M, we assume Mitchell's qualification as an expert. The trial court so found. The question of whether a witness possesses expertise in the field is left to the sound discretion of the trial court. Keller v. International Harvester Corp., 648 S.W.2d 584, 591-92 (Mo.App.1983). The issue here, however, is not the expert knowledge of Mitchell or even the need for such testimony, but the factual basis upon which Mitchell undertook to render his opinion.

According to the facts elicited on direct examination of Mitchell, he had personally inspected the damage to the Pieratt and Payne properties, but he had not been present when P & M detonated any explosives and he knew nothing in particular detail about the P & M mining operation. Mitchell's personal knowledge of the blasting which plaintiffs claimed was the source of the damage was therefore insufficient to permit formulation of an opinion on the ultimate fact of causation.

An expert witness may base a competent opinion upon matters within his personal knowledge or observation, upon competent evidence in the case or upon both. When the expert's opinion is based in part on hearsay, the proper way to present the opinion is to submit the evidentiary facts to the expert in a hypothetical question. Howard v. Lundry, 591 S.W.2d 193, 199 (Mo.App.1979). The attorney in this case attempted to do that, combining in the assumption the observations Mitchell had made himself with some facts taken from evidence in the trial. It is the adequacy of the latter to undergird the opinion which is at issue.

The hypothetical question put to Mitchell required that he assume, in addition to information he had gained from visiting the area, that P & M commenced blasting "at least in the mid-seventies" to mine coal, that the plaintiffs would feel vibrations from the blasts which would shake the house, that damage to the structures began to appear in the last three or four years and that neither earthquakes nor tornadoes had occurred. P & M's objection to the sufficiency of the foundation in the question was overruled and Mitchell then gave his professional opinion to be that the blasting had caused the damage.

Before the opinion as to causation was given by Mitchell and before P & M's objection to the sufficiency of the facts incorporated in the hypothetical question was finally overruled, several statements were elicited from Mitchell on voir dire by P & M. Mitchell acknowledged that damage from blasting varies depending on the amount of vibration. Whether a structure will be affected by vibration is determined in part by the distance between the structure and the site of the blast. Other factors which influence the potential for damage are the size of the explosive charge and the geology of the area, the character of the underground strata. P & M's objection to expression of Mitchell's expert opinion was based on the absence from the hypothetical question of any assumed distance between Pieratt and Payne properties and the location where blasting was done, any assumption of the strength of any charge and any geological data.

When damage to property is by vibration or concussion from blasting, there is an invasion of the premises and liability irrespective of negligence. Richards v. C.B. Contracting Co. 395 S.W.2d 737, 739-40 (Mo.App.1965); Smith v. Aldridge, 356 S.W.2d 532, 534 (Mo.App.1962). The capacity of the force generated by blasting to cause damage...