Madsen v. East Jordan Irr. Co. ( 1942 )

This is an appeal from a decree of the lower court sustaining a general demurrer to appellant's amended complaint and entering judgment for the respondent.

The facts, as alleged in the amended complaint, are as follows: Appellant owns the Madsen Mink Farm in Sandy, Utah, using said farm to breed and raise mink for sale. The farm is located 100 yards north of respondent's irrigation canal and, on May 5, 1941, respondent, in repairing its canal, blasted with explosives, causing vibrations and noises which frightened the mother mink and caused 108 of them to kill 230 of their "kittens" (offspring). The appellant further alleges that, by nature, habit and disposition all mink, when with and attending their young, are highly excitable and, when disturbed, will become terrified and kill their young. Appellant places a value of $25 each on said "kittens" and seeks to recover $5,750 as damages.

Respondent filed a general demurrer to the amended complaint, which demurrer was sustained and appellant given five days in which to amend.

Appellant failed to amend and judgment was entered for the respondent. It is from such judgment that this appeal is taken.

Respondent, in his brief, contends that, because the injury in the present case was consequential rather than immediate, the amended complaint does not state facts sufficient to constitute a cause of action in trespass. He further contends that the amended complaint did not state facts sufficient to constitute a cause of action in case.

It is conceded that the rule of absolute liability prevails when one uses explosives and the blasting of said explosives results in hurling of rock, earth or debris which causes injury to another. 22 Am. Jur., Explosions, Page 179, Paragraph 53; 25 C.J. 192. The weight of authority 1, 2 sustains the position that there is no distinction in liability for damage in nonconcussion and concussion cases. This majority rule, led by California, prevails in 14 jurisdictions.

The minority rule, led by New York, holds that negligence must be alleged in concussion cases. These jurisdictions do not concede liability in blasting cases where damage is caused by shock or air vibrations rather than the hurling of rock, earth or debris. This distinction is based upon the historical differences between the common-law actions of trespass and case. There is no practical difference between liability occasioned by blasting which projects rocks on another's property or by creating a sudden vacuum and resultant concussion. 92 A.L.R. 742. Had the concussion in the instant case killed the kittens directly, without the intervention of the mother minks, the majority rule of liability in concussion cases would have been applicable, but the case at bar presents the additional element of the mother minks' independent acts, threby raising a question of proximate causation. Query: Did the mother minks' intervention break the chain of causation and therefore require an allegation of negligence?

Many years ago (1896) a Maine court held that the intervening act of an animal broke the chain of causation to such extent that blasting could not be considered the proximate cause of injury and negligence on the part of the blaster had to be proved.Wadsworth v. Marshall, 88 Me. 263, 34 A. 30, 32 L.R.A. 588. In the Wadsworth case, the plaintiff was riding along a public highway near which defendant was operating a quarry. He exploded a blast which frightened plaintiff's horse and she (plaintiff) was injured. There was a Maine statute requiring persons engaged in blasting to give reasonable notice of their intention to blast to all persons in the vicinity of the blast. The trial court excluded testimony as to the viciousness and nervousness of plaintiff's horse, proceeding upon the ground that defendant violated the statute by failing to give the required notice and therefore he was liable regardless of the character of the horse or any negligence of the plaintiff. The appellate court reversed the lower court's decision, holding that it would be a harsh construction of the statute to hold that the negligence of the quarry-man in not giving notice subjected him to liability for damages largely, if not wholly, resulting from the negligence of the traveler in riding an unsuitable horse. The court ruled that "the established doctrine of contributory negligence, as a defense, applies to this class of actions."

While the above ruling interjects an element — contributory negligence — which is absent in the present case, it impresses one with the thought that he who fires explosives is not liable for every occurrence following the explosion which has a semblance of connection to it. Jake's horse might 3-5 become so excited that he would run next door and kick a few ribs out of Cy's jersey cow, but is such a thing to be anticipated from an explosion? Whether the cases are concussion or nonconcussion, the results chargeable to the nonnegligent user of explosives are those things ordinarily resulting from an explosion. Shock, air vibrations, thrown missiles are all illustrative of the anticipated results of explosives; they are physical as distinguished from mental in character. The famous Squib case does not mitigate what has been said in the preceding lines. That was a case where the mental reaction was to be anticipated as an instinctive matter of self-preservation. In the instant case, the killing of their kittens was not an act of self-preservation on the part of the mother mink but a peculiarity of disposition which was not within the realm of matters to be anticipated. Had a squib been thrown and suddenly picked up by a dog, in fun, and carried near another, it is ventured that we would not have had a famous Squib case, as such a result would not have been within the realm of anticipation.

We are of the opinion that the lower court properly sustained the demurrer.

Judgment affirmed. Costs to respondent.

MOFFAT, C.J., and LARSON and McDONOUGH, JJ., concur.