Hercules Powder Company v. Hicks

453 S.W.2d 583, 1970 Ky. LEXIS 323
CourtCourt of Appeals of Kentucky (pre-1976)
DecidedFebruary 27, 1970
StatusPublished
Cited by29 cases

This text of 453 S.W.2d 583 (Hercules Powder Company v. Hicks) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hercules Powder Company v. Hicks, 453 S.W.2d 583, 1970 Ky. LEXIS 323 (Ky. 1970).

Opinion

DAVIS, Commissioner. .

Jackson Hicks and Raymond Cox, plaintiffs in the trial court, obtained verdicts and judgments of $120,000 and $200,000, respectively, for personal injuries they suffered when an explosion occurred in a ditch where they were working. The judgments were against appellants, Hercules Powder Company; Rose A. Herbert, Executrix of E. T. Herbert, and Explosives Supply, Inc., jointly and severally. The defendants at trial are the appellants who present various grounds for reversal. The plaintiffs, by cross-appeal, seek to preserve other claimed grounds for recovery if the judgments are reversed. A statement of the factual background is necessary before discussion of the legal issues presented.

Hicks and Cox were employees of Wa-bassco Construction Company, a corporate entity owned by Don Ridge. Wabassco was engaged in developing a subdivision near Jeffersontown. Installation of sewer lines there required use of explosives in displacing rock encountered in ditching. Ridge bought a large supply of dynamite from Explosives Supply, Inc., a corporate alter ego for E. T. Herbert, who died a few months before the trial and whose personal representative is an appellant. Hereinafter, unless the contrary is indicated, reference to “Herbert” shall include reference to Explosives Supply, Inc.

Herbert was the distributor in the Louisville area for Hercules, a manufacturer of dynamite and other explosive products. He had served in that capacity since 1958. From 1927 to 1937 Herbert had delivered dynamite for Hercules; from 1937 to 1958 he had supervised the magazine for Hercules in the Louisville area.

Ridge began to purchase dynamite from Herbert in the summer of 1965, and on August 5, 1965, Ridge and Herbert executed a written “service agreement” for their companies. The agreement obliged Herbert to render to Wabassco “advice, suggestions and recommendations” relating to the use or handling of explosives upon request of Wabassco. Herbert had furnished advice and assistance to Wabassco in this regard prior to January 13, 1966, the date of the accident in question. Neither Herbert nor Wabassco sought any advice or assistance from Hercules about the Wabass- *586 co project. Hercules had no knowledge that the project existed. None of its personnel had ever visited the site or met any of Wabassco’s employees.

On the morning of January 13, 1966, some Wabassco employees, including Hicks, drilled holes preparatory to blasting with dynamite. Staples, then Wabassco’s foreman, inserted the dynamite in the holes. Blasting caps were applied, wired in series, and tamped down. A check of the circuit by use of a galvanometer indicated nothing amiss. The ditch was back-filled, the circuit retested, a lead wire attached to the blasting machine, and the charge detonated. The foreman inspected the blasted area and observed no unsatisfactory condition. He then directed Cox to level the ditch with a highlift, which he proceeded to do. Shortly, Hicks entered the ditch with a jack-hammer. He and Staples noted a “high spot” (an area of rock and other material not adequately dislodged by the explosion). Staples directed Hicks to “knock off” the high spot. With a shovel, Cox came to assist Hicks in dealing with the high spot. Hicks “poked around with the screw driver” which Cox handed him but found nothing, whereupon he applied the jack-hammer 'to the high spot. An explosion occurred at once; Hicks and Cox were badly injured. Hicks, as well as all of Wabassco’s supervisory personnel, knew that such a high spot might contain unexploded dynamite and that it presented a dangerous condition. Whether Cox had personal knowledge of the danger is not certain.

Herbert was not at the job site on January 13, 1966, nor had he been there for several days. He had no information about the particular project on which the accident occurred, nor had his advice or assistance been sought with respect to it. Herbert believed that the entire project had been shut down due to unfavorable weather conditions.

There was no specific showing whether the tragic explosion was of dynamite or a blasting cap. No contention is made that the dynamite was defective. However, ap-pellees do argue that Herbert was remiss in furnishing short-period electric-delay blasting caps with leg wires only eight feet in length.

All defendants moved for a directed verdict, both at the close of plaintiffs’ case and after all the evidence was in. The court denied those motions and submitted the case to the jury, with the result as already indicated. .

The appellants, defendants in the trial court, seek reversal of the judgments against them. The basis of the claim against Hercules, as distinguished from the claim against Herbert, makes it appropriate to deal separately in the opinion with the phases of the case as respect Hercules and Herbert.

An understanding of the trial court’s basis for permitting recovery against Hercules may best be had by referring to the pertinent portions of the court’s Instruction No. 2:

“If the jury believe from the evidence that the person or persons employed by •■[Wabassco] to perform the blasting operations, * * * were incompetent and inexperienced to perform such work, and that the defendant, Herbert, before January 13, 1966, knew or by the exercise of ordinary care, should have known that they were incompetent and inexperienced for such work, and if you further believe from the evidence that the defendant, Herbert, was not competent and experienced to properly advise, instruct and supervise such persons in the performance of such blasting operations, and if you further believe from the evidence that the defendant, Hercules, * * * before January 13, 1966, knew, or by the exercise of ordinary care should have known that the defendant, Herbert, was not competent and experienced to properly advise, instruct and supervise such persons in the performance of such blasting operations, and if you further believe from the evidence that *587 the explosion and the resulting injuries * * * were the direct and proximate result of the incompetence and inexperience of those performing the blasting operations, and the incompetence and inexperience of Herbert to properly advise, instruct and supervise said persons in said blasting operations, then the law is for both plaintiffs, Hicks and Cox, on their claims against the defendant, Hercules, and you should so find.”

It is not entirely clear from the record or the briefs what specific precedent prompted the court to give the just-quoted basis of Hercules’ liability. During the trial, and in the briefs, much reference is made to Restatement of Torts 2d, Sections 388, 390, 411, and 427. We will summarize the sections of the Restatement just mentioned, quoting some of them verbatim:

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Bluebook (online)
453 S.W.2d 583, 1970 Ky. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hercules-powder-company-v-hicks-kyctapphigh-1970.