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BROOKS v. READY MIX CONCRETE COMPANY.
36392.
Tort; damage to realty. Before Judge Hicks. Floyd Superior Court. August 3, 1956.
FELTON, C. J.
Injuries to real property caused by concussion from blasting with dynamite are direct, and constitute a trespass to realty, and the one who voluntarily sets the force in motion is absolutely liable to the injured party despite the exercise of due care. The court erred in sustaining the general and special demurrers to the petition.
John J. Brooks sued Ready Mix Concrete Company for $1,000 damages. The petition alleged: "3. Plaintiff is the owner of a frame dwelling occupied by the plaintiff as a home and situated at No. 614 Briarwood Circle according to the present system of numbering in Rome, Floyd County, Georgia. 4. Prior to the damage hereinafter described the plaintiff's home was in good condition and had a reasonable fair market value of $11,000; subsequent to and because of the acts of the defendant the plaintiff's home had a reasonable fair market value of only $10,000. 5. The defendant operates and was operating at the time complained of a rock quarry which is located approximately 1,000 yards from plaintiff's dwelling. 6. In the operation of its quarry the defendant from time to time causes the explosion of quantities of dynamite or other high explosives, the name and composition of which are unknown to the plaintiff, but well known to the defendant. 7. On or about October 14, 1955, the defendant in the course of its operations caused the explosion of a substantial amount of dynamite or other high explosives, the amount of which is unknown to the plaintiff, but well known to the defendant. The explosion so caused set up violent shock or concussion waves which caused the plaintiff's home to tremble and vibrate to the extent that the plaster in all four rooms of plaintiff's house and the hall and bath cracked to such extent as to require the replastering and repainting of approximately 3,086 sq. ft. of plaster. 8. The damage to the plaintiff's house as aforesaid resulted proximately from the explosion set off by the defendant."
The defendant filed a general demurrer and three special demurrers, as follows: "2. The allegations, in paragraph 7 of the petition, that the explosion complained of occurred 'on or about October 14, 1955' are too vague, indefinite and uncertain concerning the time when such explosion occurred to afford defendant sufficient information from which to prepare its defense adequately. 3. The allegations, in paragraph 7 of the petition, that the 'explosion so caused set up violent shock or concussion waves' are too vague, indefinite and uncertain concerning what caused the house to tremble and vibrate, the allegations being in the alternative and the type of shock being unstated, to afford defendant sufficient information from which to prepare its defense adequately. 4. The allegations, in paragraph 7 of the petition, that the 'plaster . . . cracked to such extent as to require replastering and repainting of approximately 3,086 sq. ft. of plaster' is so vague, indefinite and uncertain in that it fails to show the width, length, depth and exact location of the cracks, that it does not afford defendant sufficient information from which to prepare its defense adequately."
The court sustained the general and all of the special demurrers and dismissed the action and the petitioner excepted.
The petition seeks recovery on the theory that the defendant is liable without negligence or fault for a direct trespass upon the plaintiff's property. The defendant contends that the damage was indirect or consequential and that negligence is prerequisite to the cause of action. This seems to be a case of first impression in this State as to the particular facts alleged.
Ex. 161; Pollock, The Law of Torts, 11th ed., p. 11. The rule seems to have been changed in England in 1890 in Stanley v. Powell, L. R. (1891) 1 Q. B. 86. Harvard Law Review, Vol. 33, p. 546.
2. The vital question in this case is whether damage from blasting is a direct or consequential trespass. The courts of many States have held that the damage is consequential. See cases cited in Exner v. Sherman Power Construction Co., 54 Fed. 2d 510, 80 A. L. R. 686, 690. In the blasting cases it has been uniformly held, with a few possible exceptions, that the liability is absolute wherever there has been an actual invasion of property by rocks or debris projected by a blast. See cases cited. 80 A. L. R. 690. The courts denying absolute liability in blasting cases based their conclusions on their opinion that in blasting damage the damage was consequential. The court in the Exner case, supra, rejected the distinction between the two kinds of damage by concluding that there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. The distinction was said to have been based on historical differences between the actions of trespass and case and to be without logical basis and the court cited many cases which had rejected the distinction. 80 A. L. R. 691. We agree with the conclusion in the Exner case. If there had been a ruling by a common-law court in England prior to May 14, 1776, to the effect that the distinction between the two types of blasting injuries was valid, we would be bound. The ancient forms of action have been abolished and we can arrive at the law by process of valid reasoning and not let the ancient forms of action rule us from their graves after they have been buried, to paraphrase Professor Maitland. Maitland, Equity and the Forms of Action, 296. Damage from concussion is as immediate, if not faster, than damage from blasting, which is as dangerous and as unpredictable, and probably more dangerous. The weight of authority supports the conclusion we have reached, though there is considerable authority supporting the other view. Pro, 20 A. L. R. 2d 1375. Contra, page 1388. We think Code 105-1401 resolves the issue as to which maxim is paramount "One may not so use his own property as to injure the property of another" or "The owner of property has the right to the fullest use of his property." We think the first is paramount and the Code gives a right of action for absolute liability if one's property is injured directly by another's use of his. Besides, reason and common sense and justice require that the one who sets in motion an agency which directly damages another's property, especially an agency of such a dangerous nature, should suffer rather than an innocent property owner who has done nothing. Decisions by the courts of this State in blasting cases wherein the plaintiffs based their cases on negligence are irrelevant on the point at issue. The liability of a railroad for throwing sparks on property adjacent to rights-of-way is distinguished in Gainesville, Jefferson &c. Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213). Cases involving dangerous agencies such as gas and electricity where no direct trespass is involved are also irrelevant. The defendant in error quotes a statement from Spencer v. Mayor &c. of Gainesville, 140 Ga. 632 (2) (79 S. E. 543) that "the mere fact that the stones fell upon the plaintiff's adjacent land and injured his property would not render defendant liable in trespass for the injury." The first part of the sentence changes the whole meaning of the quote because the defendant was blasting on land purchased by the defendant from the plaintiff with the permission of the plaintiff granted in the deed of conveyance. A recovery was affirmed in Moross & Co. v. Burke, 99 Ga. 110 (24 S. E. 969), for a similar trespass where the blasting was done without the plaintiff's permission. The ruling in Austin v. Augusta Terminal Co., 108 Ga. 671 (34 S. E. 852, 47 L. R. A. 755) treated the alleged injury as being consequential and not direct but it was explained and criticized in Central Ga. Power Co. v. Nolen, 143 Ga. 776 (85 S. E. 945). The defendant in error cites many articles by textbook writers and professors urging the desirability of the abolition of the rule of absolute liability or liability without fault. Even if such a rule is more desirable, relief lies solely with the General Assembly. The special demurrers are without merit and we do not think that discussion of the reasons is necessary more than to say that the allegations attacked furnish the defendant with sufficient facts to enable it to prepare its defense.
The court erred in sustaining the general and special demurrers and in dismissing the action.
Judgment reversed. Quillian and Nichols, JJ., concur.
Matthews, Maddox, Walton & Smith, contra.
Wright, Rogers, Magruder & Hoyt, Dudley B. Magruder, Jr., for plaintiff in error.
DECIDED NOVEMBER 20, 1956 -- REHEARING DENIED DECEMBER 6, 1956.
Saturday May 23 02:17 EDT


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