Atherton v. Clearview Coal Co.

Concurring Opinion by

Me. Justice Simpson:

If the statement of claim in this case had averred defendant wilfully or wantonly used an excessive quantity of high explosives in order to obtain the coal, and by reason of such excessive use, plaintiff’s property was injured, or if it had averred the quantity of high explosives which defendant used was so excessive it knew or was bound to know before exploding them that unnecessary injury would be inflicted on plaintiff’s property, and sought recovery for such unnecessary injury, in my judgment the statement would charge an actionable offense notwithstanding the release. No such averments appear, however, and hence I concur in the affirmance of the judgment.

Mr. Justice Kephart joins, herein.