Ex parte Birmingham Realty Co.

63 So. 67 | Ala. | 1913

SOMERVILLE, J.

— The law of liability for injury resulting from blasting on one’s own premises is Avell settled.

1. Where the plaintiff is injured while lawfully on the defendant’s premises, liability depends upon some proximate negligence on the part of the defendant.— Sloss-Sheffield, etc., Co. v. Salser, 158 Ala. 511, 48 South. 374; Birmingham, O. & M. Co. v. Grover, 159 Ala. 276, 48 South. 682.

2. For the ordinary discomforts and injurious effects attendant upon the defendant’s lawful operations on his oavji premises, not constituting a legal nuisance, there is no liability to an adjoining or neighboring proprietor except for some proximate negligence in the mode or circumstances of such operations. — Williams v. Gibson, 84 Ala. 228, 233, 4 South. 350, 5 Am. St. Rep. 368.

3. Where' the defendant throws rock or other debris upon the premises of an adjoining or neighboring proprietor, this is a direct invasion and a trespass for Avhich the defendant is absolutely liable, regardless or any considerations of prudence or negligence in the mode or circumstances of the blasting. — Bessemer, etc., Co. v. Doak, 152 Ala. 166, 44 South. 627, 12 L. R. A. (N. S.) 389; Sloss-Sheffield, etc., Co. v. Salser, 158 Ala. 511, 48 South. 374; Birmingham O. & M. Co. v. Grover, 159 Ala. 276, 48 South. 682; 38 Cyc. 997; 1 Thomp. Neg. (2d Ed.) § 764.

4. This general rule of liability is qualified by the principle that, where the defendant has by-law or contract acquired an easement as against the plaintiff’s premises, which expressly or impliedly authorizes the operation of blasting, either directly or as a reasonably necessary incident to some other lawful purpose, liability arises only as the result of some proximate negligence-on the part of the defendant. — Wilkins v. M. C. Slate Co., 96 Me. 385, 52 Atl. 755; Blackwell v. L. & D. R. R. Co., 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 32 Am. St. Rep. 786; 27 Cyc. 784, b; 1 Thomp. Neg. § 766. See, also, Williams v. Gibson, 84 Ala. 228, 232, 4 South. 350, 5 Am. St. Rep. 368; Hooper v. Dora Coal Mining Co., 95 Ala. 235, 10 South. 652; L. & N. R. R. Co. v. Higginbotham, 153 Ala. 334, 344, 44 South. 872.

In the instant case the complaint avers and the evidence sliows a direct invasion of plaintiff’s premises, occupied by himself and family, by blasting done on defendant’s premises, whereby fragments of rock of a dangerous size were hurled against the dwelling house and about the curtilage.

Defendant’s insistence is that the Court of Appeals has overrun the decisions of this court in several particulars : (1) In construing the second count of the complaint as one in case; (2) in holding that defendant corporation is liable in trespass for the alleged acts of its servants; and (3) that wantonness is not shown and cannot be inferred from the facts in evidence. These theories of the case are presented by defendant’s request in writing for the general affirmative charge on the second count, refused by the trial court.

Conceding, without deciding, that the second count is for a trespass by the defendant corporation itself, within the rule of City Delivery Co. v. Henry, 139 Ala. 166, 34 South. 389, we find in the action of the Court of Appeals nothing not in harmony with the decisions of this court or with the general principles of the law. “A master is liable if a trespass is the natural and probable result of orders given by him to his servant, or if he ratifies a trespass committed by his servant or agent.” — 38 Cyc. 1040.

It cannot be declared, as matter of law, that the hurling of these fragments of rock upon plaintiff’s premises was not the natural and probable result of defendant’s blasting carried on in close proximity thereto. And certainly, if it was continued by the company after knowledge of its injurious results through notice to its general manager, the question of the company’s direct instigation of the trespasses complained of was at least a question for the jury, if it was not foreclosed against the company as a matter of law.

When a trespass is committed under circumstances of aggravation, exemplary damages may be awarded by the jury. “Exemplary damages may be given when the act was oppressive, or when the act was committed with violence, or rudely, or with excessive force, or under circumstances of insult and outrage, * * * or in known violation of the law, or forcibly and against protest.” — 38 Cyc. 1144-1146, and cases cited.

The word “wanton,” when used in a trespass complaint to characterize conduct set up by way of aggravation merely, is not governed by the rules of pleading applied to the same word when used in negligence counts. As here used, we think it imports no more than that the rocks were thrown on plaintiff’s premises with a knowledge of the violation thereby of plaintiff’s rights and of the injurious results therefrom, and there was evidence to support that charge.

But, even if the charge of aggravation failed of proof, plaintiff would still have been entitled under this count to recover compensatory or nominal damages, and defendant’s requested instruction should have gone to the elimination of exemplary damages, and not to a denial of any recovery at all.

The grounds' of demurrer assigned to the second count were upon the theory, now denied, that the count is in case, and that it alleges that defendant’s servants caused the rocks to be thrown. But, overlooking this infirmity of the demurrer, the count sufficiently charges a trespass, and the demurrer was properly overruled.

We find nothing in the decision of the court of appeals Avhich ought to be corrected here, and the writ of certiorari will be denied.

Writ denied.

All the Justices concur, except de G-raffbnried, J., not sitting.