286 Mass. 180 | Mass. | 1934
This is a bill in equity wherein twenty-one plaintiffs seek compensation for damages, alleged to have been caused as a result of blasting operations conducted by the defendant A. G. Tomasello & Son, Inc. The case was heard upon demurrers of each defendant to the substitute bill of complaint allowed on September 15, 1933. The demurrers were overruled and an interlocutory decree was entered to this effect. The judge of the Superior Court, who ordered the entry of said interlocutory decree, “being of the opinion that this order and decree ... so affect the merits of the controversy that the matter ought before further proceedings to be determined by the full court,” at the request of the defendants, “report[s] the question for that purpose on the said substitute bill of complaint and the demurrers thereto, and stay[s] all further proceedings except those necessary to preserve the rights of the parties.” No appeals from said orders are pending. The demurrers are identical and the defendants file a single brief for both.
The substitute bill of complaint is brought in behalf of the named plaintiffs and all other persons having claims
The bond was given under G. L. c. 148, §§ 24, 25, reenacted by St. 1930, c. 399, § 1, as G. L. (Ter. Ed.) c. 148, §§ 19, 20
The defendants assigned as causes of the demurrer the following grounds: “1. That the plaintiffs have not in and by said bill of complaint set forth a cause of action which entitles them to any equitable relief. 2. That the said bill of complaint is multifarious in that the plaintiffs have joined in one suit separate and distinct causes of action. 3. That it does not appear that there was any negligence on the part of the principal, A. G. Tomasello & Son, Inc. which caused the alleged damage to the plaintiff. 4. That the said bill of complaint seeks to establish
The basic contentions of the plaintiffs in support of the decree are that it was not necessary to allege in the complaint, or prove by evidence, that the principal defendant was guilty of negligence in the use of explosives under its permit to the damage of the several plaintiffs, for the reason that the bond and statute according to their plain terms implied an absolute liability and should be so construed, and that the statute, though it imposes an absolute liability, is nevertheless constitutional.
In opposition to the position taken by the plaintiffs, the defendants contend that G. L. (Ter. Ed.) c. 148, § 19, as originally enacted by St. 1911, .c. 325, was entitled “An Act to provide for the giving of bonds in blasting operations”; that the title indicates the purpose of the act was to create a fund for the protection of persons damaged in their persons or property as the result of blasting operations, from which a common law liability arose, to the end that the persons injured might be recompensed to the limit of the bond without regard to the financial ability of the conductor of the blasting operations to satisfy any judgments recovered against him. The defendants direct particular attention to the fact that G. L. (Ter. Ed.) c. 148,
It is settled that the Legislature may prohibit a use of land which the common law regarded as a nuisance if it endangered adjoining houses or the highway, Commonwealth v. Parks, 155 Mass. 531, and it is plain it may require an application for a permit “to use an explosive in the blasting of rock or any other substance” to assure an absolute liability as a condition precedent to the issue of a permit. Instances of such legislation are found. G. L. c. 160, § 234. See Boston & Maine Railroad v. Hartford Fire Ins. Co. 252 Mass. 432, 435; see also G. L. c. 140, § 155, as to the owner or keeper of dogs, and c. 166, § 42, as to the liability in damages of telegraph companies to persons injured in person or property by the poles, wires or other apparatus
Attention is further directed to the fact that G. L. c. 148, §§24 and 25, nowhere says that a person using explosives shall be liable in any manner different from that in which he would be at common law. By the common law one carrying on blasting operations is liable for all direct injuries to the person or property of another, but in the absence of negligence is not liable for consequential harm such as is caused by concussion. In the case at bar it is plain that the Legislature by requiring a permit to use explosives in the blasting of rocks or other matter showed no intention to enlarge the common law duty of the contractor to prosecute the operations with due care. Assuming that the legislative purpose of requiring a bond to be filed with the application for a permit was to afford a cause of action on the bond to anyone damaged directly or consequentially by the negligence of the contractor, it is obvious that no action on the bond would lie without proof of a breach of the bond, and that the harm to some of the plaintiffs might be direct, while the injury to others would depend upon such persons’ ability to prove the contractor was negligent in the use of the explosive. Manifestly before such judgments are obtained by the several plaintiffs and others who may join with them in prosecution of this suit in equity there is no occasion for a ratable apportionment of the penal sum of the bond among the plaintiffs.
For the reasons stated we think the bill of complaint does not set out a community of interest in the subject matter of the controversy, or that there is a common right or title involved, and that the several demurrers should be sustained on both grounds — “A. Jurisdictional” and. “B. Substantive,” as claimed by the defendants.
Decree accordingly.
Section 19. Before the issue of a permit to use an explosive in the blasting of rock or any other substance as prescribed by the department, the applicant for the permit shall file with the clerk of the city or town where the blasting is to be done a bond running to the city or town, with sureties approved by the treasurer thereof, for such penal sum, not exceeding ten thousand dollars, as the marshal or the officer granting the permit shall determine to be necessary in order to cover the risk of damage that might ensue from the blasting or its keeping therefor; provided, that the marshal or the officer granting the permit may determine that a single and blanket bond in a penal sum not exceeding fifteen thousand dollars is sufficient to cover the risk of damage from all blasting operations of the applicant, either under the permit so issued or under future permits to use explosives in blasting operations. The bond shall be conditioned upon the payment of any loss, damage or injury resulting to persons or property by reason of such blasting or keeping.
Section 20. Action on a bond filed under the preceding section may be brought by any person to whom loss, damage or injury has resulted by reason of such blasting or keeping, and shall be brought in the name of, and for the use and at the cost and expense of, such person; but in no event shall action be brought on the bond for personal injury of an employee of the person receiving the permit. If claims on any bond are established to an amount greater than the penal sum thereof, such claims shall be paid pro rata to the amount of the penal sum, and executions shall issue accordingly.