Harbison-Walker Refractories Co. v. Scott , 185 Ala. 641 ( 1914 )

McCLKLLAN, J.

The action was for damages to property in consequence of the setting off: of explosives in and about quarrying stone. The appellee was the plaintiff, and the appellant the sole defendant.

On the first question presented, Justice Somerville expresses the views of the majority:

“The ninth count of the complaint charges that defendant was engaged in blasting on its own premises, and that, though notified by plaintiff that it was injuring her residence thereby, -defendant nevertheless 'wantonly and recklessly used explosives in such quantities and to such an extent as that the blast or explosion therefrom shook and jarred the plaintiff’s house,’ etc. A majority of the court are of the opinion that this count sufficiently charges wanton negligence in the conduct of defendant’s blasting operations, so as to import liability within the principles stated in Bessemere C., I. & L. Co. v. Doak, 152 Ala. 166, 177 [44 South. 627, 12 L. R. A. (N. S.) 389]. The phrase 'wantonly and recklessly,’ as here applied, charges negligence with a knowledge of the injury that would result; and it manifestly characterizes, not merely the act of blasting, but also the extent of the blasting and the quantity of explosives used. If the charge were merely that defendant wantonly and recklessly blasted — blasting being in itself lawful and proper — the count would be defective as a wanton count, and would be controlled by the ruling in Harris v. Lumber Go. [175 Ala. 148], 57 South. 453. To blast to a greater extent, or to use explosives in larger quantity, than is reasonably necessary, to the injury of another, is an actionable wrong, and that is what the count in question fairly and- sufficiently charges.

“In this view Sayre, de Graffenried, and Gardner, JJ., concur. Anderson, O. J., and McClellan and Mayfield, JJ., hold that the count does not sufficiently charge negligence or wantonness, and was subject to the demurrer.”

The trial court necessarily determined that the witness George D. Harris was qualified to have and give an expert opinion in response to the matters set forth in the questions quoted in assignments numbered 6 and 7. The report of the appeal will contain these two questions. We have carefully considered the testimony bearing upon his qualification in the premises, and are unable to affirm error of the trial court’s conclusion. The witness, being an expert, was properly allowed to answer the questions mentioned. — Culver v. Ala. Md. Ry. Co., 108 Ala. 330, 334, 18 South. 827; McNamara v. Logon, 100 Ala. 187, 196, 197, 14 South. 175; Ala. C. C. & C. Co. v. Pitts, 98 Ala. 285, 289, 290, 13 South. 135. The fact that an otherwise proper question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper. If the earlier cases cited in brief for appellant conclude to the contrary, they are not in accord with more recent rulings, as appears from the decisions noted above. Bailey’s Case, 107 Ala. 151, 18 South. 234, is without bearing. The rulings did not involve the scope of expert opinion, but, more particularly, the propriety of one person’s being allowed to testify to another’s cognitions. There was no error in overruling the objections to the questions mentioned.

The court properly declined, on objection by plaintiff, to. allow defendant to show that Burrows conveyed the lot to W. J. Scott, and not to the plaintiff. The deed was the best evidence of the fact.

The decision of the issue of want'onness vel non in the premises was, under the evidence, for the jury. The plaintiff testified that she went to see Mr. Beverly, who was in charge of the blasting operations; that he accompanied her on an inspection of the property and of all the damage that was being done; that she asked him “if he thought it was right to wantonly destroy my (her) property without any regard to my (her) right in the premises”; that, in response, “he said no, that he didn’t, but that they were under contract to mine stone, and he supposed they would have to keep on blasting.” It was further testified by the plaintiff that Beverly was given a demonstration of the jarring effect of the blasts upon the house while he was there, as stated, at plaintiff’s request. We think the court was entirely justified in declining to affirmatively instruct the jury not to award exemplary damages. It was open to them to find that the blasting proceeded, notwithstanding remonstrance, and that it was so carried on in order to perform a contract, and in utter disregard of the safety of plaintiff’s property. For like reason, the general affirmative charge against the right to recover on the ninth count was properly refused defendant.

Charge G was well refused. Its more serious infirmity lay in its effect to exclude other negligent discharges or blasts than those which were the result of an “excess” of explosive. The vibratory effect of the discharges upon other buildings in the neighborhood was admissible in evidence to show the character and extent of the explosions.

There is no error in the record. The judgment is affirmed.

Affirmed

Sayre, Somerville, de Graffenried, and Gardner, JJ., concur. Anderson, C. J., and McClellan and Mayfield, JJ., concur in the opinion, except as indicated; and hence dissent from the conclusion to affirm.