Dykes v. Peabody Shoreline Geophysical

482 So. 2d 662
CourtLouisiana Court of Appeal
DecidedNovember 19, 1985
Docket84-CA-0140 to 84-CA-0142
StatusPublished
Cited by10 cases

This text of 482 So. 2d 662 (Dykes v. Peabody Shoreline Geophysical) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dykes v. Peabody Shoreline Geophysical, 482 So. 2d 662 (La. Ct. App. 1985).

Opinion

482 So.2d 662 (1985)

Bryan and Gloria DYKES, et al.
v.
PEABODY SHORELINE GEOPHYSICAL and Transportation Insurance Company.
Eddie L. and Maxine ARD
v.
PEABODY SHORELINE GEOPHYSICAL and Transportation Insurance Company.
Ruth CAMPBELL
v.
PEABODY SHORELINE GEOPHYSICAL and Transportation Insurance Company.

Nos. 84-CA-0140 to 84-CA-0142.

Court of Appeal of Louisiana, First Circuit.

November 19, 1985.
Rehearing Denied February 7, 1986.

*663 Paul H. Due, Baton Rouge, for plaintiff, appellee.

Richard F. Zimmerman, Jr., Baton Rouge, for defendant, appellant.

*664 Before EDWARDS, SHORTESS and SAVOIE, JJ.

EDWARDS, Judge.

The plaintiffs in these consolidated cases sued to recover property damages and general damages for inconvenience, mental anguish and invasion of privacy, the damages having been caused by seismic blasting operations conducted by defendant, Peabody Shoreline Geophysical (Peabody). The suits were tried together before a jury which awarded plaintiffs a total of $180,000. Peabody and its insurer, Transportation Insurance Company, have suspensively appealed the judgment.

Peabody raises five basic issues. First, Peabody contends that plaintiffs failed to prove that its activities caused the damages. The second contention is that the jury's awards were excessive. Third, that the trial court erred in denying Peabody's exception of prescription on the claims brought by the two minor children of Bryan Dykes. The fourth issue raised is that the trial court erroneously taxed as costs the fees for certain discovery depositions never introduced or admitted at trial, and fees for supposedly expert witnesses who were never qualified as experts or accepted by the trial court. Finally, Peabody assigns error to the admission of certain hearsay testimony.

Defendant was conducting seismic operations in and around Montpelier, Louisiana, in December of 1980. The particular explosion complained of occurred at about noon at a drill site located on Mrs. Campbell's property approximately 700 feet from her home. Five one-pound charges of explosives, spaced five feet apart on a line and lowered 100 feet below ground, were to be detonated in sequence at intervals of thirty seconds. For some reason unknown, the entire load went off at the same time. Plaintiffs testified that they were quite startled and that the earth shook and windows and walls rattled.

Four of the five plaintiffs were at home when the blast occurred. Bryan Dykes had come home for lunch. He testified that he heard a single blast that "felt like an earthquake" and "shook the whole house." He then saw a crack in the fireplace in the mortar of the brick above the mantel. Gloria Dykes, his wife, was in the kitchen cooking. She said that she heard a loud noise, felt a tremor, and then saw a crack in the kitchen floor.

Maxine Ard, who had been working in her garden and had just stepped inside, also testified that the explosion felt like an earthquake and that it shook the whole house. Mrs. Campbell testified that she had just lain down after lunch and was lying upon her bed when she felt the house and the bed shake.

Later that day, Bryan Dykes drove over to the blasting site. He was the mayor of Montpelier at the time and was aware that seismic operations had been in progress for a couple of weeks. He testified that he met a man who was sitting in a Peabody company truck who told him that they had made a mistake and had accidently set off all five charges at once. The man agreed to accompany Dykes to his home to inspect the damages. The man also contacted Joseph Faulk, Peabody's permit agent, who arrived about an hour later. Dykes testified that Faulk admitted Peabody's responsibility for all the damages caused by the explosion and that Faulk agreed to bring in insurance adjusters to settle the damage claims in a couple of weeks. Ultimately, Dykes testified, Faulk apparently changed his mind and did nothing.

Immediately after the explosion, Maxine Ard telephoned Bryan Dykes to find out what had happened. She then went to the blast site herself. She testified that she, too, met a man there who said Peabody had had an accident.

All of the plaintiffs testified that prior to the explosion their homes were in generally good condition but that immediately after it, and in the weeks that followed, there appeared various damages which they attributed to the blast and which, in the case of the Ard and Dykes homes, progressively worsened during the three years before trial.

*665 Dykes testified that he and his family had to move out of their house for three or four days while he located and repaired a break in the sewer line to the septic tank. In addition, he said there was a crack which ran the length of the slab upon which the house was built, indicating structural damage.

Eddie and Maxine Ard testified to similar damages, including problems with the waterline to their commode and cracks in the slab and in the mortar on both sides of the house.

Mrs. Campbell testified that the explosion knocked some plates off her kitchen wall and that several weeks later about half of her kitchen ceiling collapsed, ruining the carpet. She found it particularly stressful, she said, since at that particular moment she was fixing lunch for her husband who was recovering from a heart attack. Mrs. Campbell, like the other plaintiffs, suffered plumbing problems, having to replace some broken galvanized pipes under her house.

In addition, Mrs. Campbell testified that Peabody trespassed on her property. She said that she had signed a permit, which she introduced into evidence, authorizing Peabody to lay cable across her property but giving no permission for seismic activity. Several weeks after the explosion, accompanied by Bryan Dykes, she found drill holes on a corner of her property where the blasting had been done.

HEARSAY—CAUSALITY

Defendants contend that plaintiffs failed to prove a causal connection between the seismic activities and the damages. At trial, plaintiffs offered testimony concerning statements made by the unidentified truck driver and Joe Faulk in support of causality. Defendants allege error by the trial court in admitting this hearsay testimony. We hold that while it is hearsay, it is also admissible. Plainly, material statements of an agent who is acting for a principal are admissible as an exception to the hearsay rule when offered by a party opponent. Pennington v. F.G. Sullivan, Jr., Contractors, Inc., 416 So.2d 192 (La. App. 1st Cir.1982), writ denied, 421 So.2d 248 (La.1982). Furthermore, declarations against pecuniary interests are an admissible exception, even when made by a person not a party to the litigation. Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972).

Peabody was less than staunch in defending this point. Counsel made no objection to the admission into evidence of Joe Faulk's business card. This card on its face clearly confirmed that Joe Faulk was Peabody's agent. Moreover, defendants raised no objection to the testimony by Bryan Dykes that the unidentified Peabody employee in the truck telephoned Joe Faulk and asked him to come discuss with plaintiffs the damages they had sustained.

We hold, therefore, that plaintiffs adequately carried their burden of proving a causal connection between the explosion and the damages.

In rebuttal, Peabody offered the argument of "scientific impossibility." This consisted of testimony by an expert in explosives and stress analysis who holds degrees in mathematics and physics.

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482 So. 2d 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dykes-v-peabody-shoreline-geophysical-lactapp-1985.