Whaley v. Sloss-Sheffield S. & I. Co.

51 So. 419, 164 Ala. 216, 1909 Ala. LEXIS 288

• Court: Supreme Court of Alabama
• Decided: December 21, 1909
• Status: Published

Opinion

MAYFIELD, J.

Appellant sued to recover damages for injury to his storehouse, caused by the expíosion of dynamite which the defendant had stored in its magazine, bnilt for snch storage purposes, upon its own premises.

The defendant, at the time of the explosion, and for a long time prior thereto, was engaged in the manufacture of iron, and for this purpose it was necessary to blast the lime rock used for flux as well as the iron ore. The defendant’s plant was located upon a thin vein of lime rock, which ivas exposed or near the surface, there being little earth or drift formation upon the limestone. The furnace was evidently thus located because of the availabiilty and accessibility of the lime rock. To render this rock available for use in the furnaces, it was necessary to blast it, and large quantities of dynamite were necessary for this purpose. After defendant’s plant was thus located the town of North Birmingham was built up and incorporated, so as to include its plant, and it continued to operate it thereafter. So there is no contention as to the negligence or wrongful location of the plant, aside from the magazines in which the explosives were stored. On the 2nd of May, 1906, there -was a violent explosion of this dynamite stored in the magazines, which destroyed a great deal of property in the vicinity, including the plaintiff’s store, which is the basis of this action. No specific cause for this explosion was shown. The allegations of some counts of the complaint and the evidence tended to show it was probably the result of different causes. The trial resulted in a verdict and judgment for the defendant, from which the plaintiff appeals.

It is insisted that the court erred in sustaining a demurrer to the fourth count. If this could be said to be true (but we think it can not), it would clearly be without injury, because there were' other counts remaining so similar to this that no possible injury could result, for the reason that evidence which would have supported or justified a verdict under that count if in would equally have supported the same verdict or judgment under the other counts. It was, however, insufficient, in that it failed to allege any negligence or actionable wrong in the storing, keeping, or explosion of the dynamite, nor did it allege sufficient facts to show that the storing or keeping thereof was a nuisance per se. As tending to this, it merely alleged the storing or keeping of large quantities of dynamite or other explosives in a thickly settled portion of the city of North Birmingham, in proximity to many buildings and persons. This, without more, is not sufficient. The exact question was decided by this court in the case of Kinney v. Koopman & Gerdes, 116 Ala. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119, which reviewed all the authorities on the subject, both in this and other states. Neither do we construe the decision in the case of Rudder v. Koopman & Gerdes, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489, to hold that a count like the one in question is good in all cases against demurrer. It is true that there are expressions in both cases and quotations in both from .the same authorities which would seem to support the contention'of appellant that this count is sufficient. It is also true that these two cases were against the same defendants, and were each founded or based upon identically the same wrongful act, to wit, the keeping or storing and the explosion of quantities of dynamite powder, and other explosives, within the'corporate limits of the town of Cullman, Ala.

The complaints appear to have been drawn by the same attorneys in each case. The complaint in each case consisted of several counts, and demurrers were sustained to some of the counts and overruled as to others. In Kinney’s Case a trial was had upon these counts as to which demurrers were overruled, which resulted in a verdict for defendant; while in Rudder’s C'ase the demurrer was sustained as to all the counts, and the court declined to allow plaintiff to file others similar to those already passed upon. The plaintiff then declined to plead further, and suffered judgment final. The appeal was taken by the plaintiff in each case to the same term of this court, and in each appeal were raised the questions as to the sufficiency of certain counts of the complaint, some of the counts in each case being almost identical, a mere change as to the names of the plaintiff’s, which Avere, of course, different. The cases seem to have been submitted at the same time, but not together, as the styles of both cases appear in the report of the Kinney Case, and Justice Coleman prefaces his opinion by the remark that the material questions Avere the same in the tAVO cases, and probably it Avould have been better had both been submitted together, Justice Coleman writing the opinion of the court in the one and Justice Head in'the other. Neither of the opinions passed upon the sufficiency of each count separately, but each revieAved practically the same authorities, and then announced certain propositions of laAV applicable to the same, the effect of AAdiich Avas to hold some of the counts good and some bad, and the opinion in each case expressly saying some Avere bad and some were good; and the judgment of the loAver court Avas reversed in each case because of the court’s sustaining demurrers to some of the counts Avithout pointing them out further than by applying the principles of laAV announced to the respective counts. So it follows that both cases Avere properly reversed under the decision in either. Yet some of the propositions of laAV announced in the íavo cases are directly conflicting, and they are based upon, and cite, the same authorities in support of the respective conclusions, and neither one of the cases refers to.the other further than the statement above referred to by Justice Coleman.

One of the questions as to which these two decisions conflict is: What is sufficient to constitute a nuisance per se as to the keeping or storing of explosives? — the one holding that the storing or keeping of dynamite pr gunpowder in large quantities in a thickly settled portion of a city is not a nuisance per se; the other, that it is. It is also true that there is a long and strong line of decisions of other courts, both before and since these decisions, that support each of these two conflicting propositions. But all of the cases, so far as we have examined them, hold' that, in order to render a party liable for damages the result of explosives, it must be shown, first, that the explosives were so manufactured, kept, or stored, etc., as to constitute a nuisance, either public or private; or second, that the person so manufacturing, storing, keeping, or handling the explosive was guilty of some negligence or want of care which proximately caused the explosion which resulted in the injury. All hold that one or the other must be shown.

The pleadings must allege facts showing the one or the other. Mere general conclusions are not sufficient, except as to negligence, which as a rule (especially in this state) may be alleged in very general terms. The storing or keeping of the explosives, as alleged in the fourth count, might' or might not be a nuisance, depending upon the quantity and kind of explosive kept, the purpose for which it was kept, the length of time for which it was kept, the kind and character of the magazine or house in which it was kept, what protection was afforded by the mode of keeping from liability to explode. There were no averments to show any of these facts. The averments as to large quantities, and as to being kept in a thickly settled portion of the city, were mere conclusions of the pleader, unsupported by any facts. These averments were not traversable. How much powder, or how much dynamite, or how much nitroglycerine was kept, which one was kept, and how much was considered “large quantities”? What would be a large quantity of one might be a small quantity of another. It might be perfectly safe to keep 100 or 1,000 pounds of one explosive and dangerous to keep 50 pounds of another. These allegations as to the kind of explosives and quantity were entirely too general, being alleged in the alternative as they were.

As numerous as have been the decisions upon the question under consideration, and as apparently conflicting as many of them appear to be, we think the following may be said to be supported (or at least not denied) by most, if not all: Explosives may be stored or kept, in such quantities, and of such kinds, and in such localities, and for such time, and for such purposes, as to be peí? se a nuisance; and in such cases the person so creating, or so continuing, such nuisance, is liable for all damages suffered in consequence thereof, irrespective of negligence or want of care in so storing, keeping, causing, or allowing explosions thereof. The keeping or storing of a given quantity of one kind of explosive might constitute a nuisance per se when the keeping or storing of a like quantity of a different kind, under, the same conditions, would not be a nuisance. The keeping or storing of one quantity of different kinds might be a nuisance, while the storing or keeping of the same quantity of any one of the different kinds would not be a nuisance. The keeping or storing of explosives in a certain place or location may be a nuisance, when the same character of keeping or storing of the same kind and same quantity of explosives in a different place or- locality would not be a nuisance. The keeping or storing of explosives for a given length of time might be a nuisance, when the keeping of the same kind, and same quantity, a different length of time, would not be a nuisance. The keeping of a given kind and quantity for a given purpose might be a nuisance when the keeping of the same quantity and the same kind at the same place and for the same time, but for a different purpose, would not be a nuisance. The keeping in one kind of magazine or house might be a nuisance, when the keeping of the same kind, the same quantity, for the same purpose and for the same time, but in a different receptacle, magazine, or storehouse, would not be a nuisance.

There are so many other conditions or considerations, too numerous to mention, which enter into the question, or are to be considered in determining, whether or not the keeping or storing of explosives is a nuisance per se that it renders any exact and accnrate definition of such a nuisance per se almost impracticable, if not impossible. All of the decisions, however, hold that if the persons storing or keeping dangerous explosives are guilty of any negligence, or want of reasonable care, in the storing or keeping, or in allowing or causing the explosion thereof, they are liable for the damages or injury in consequence thereof, whether the keeping or storing was a nuisance or not, that the question of a nuisance or not is immaterial, if negligence or want of care be present, and contributes to the explosion and injury, and, if it be a nuisance per se, then the question of other negligence or want of care is immaterial, or at least unnecessary, to fix liability.

The court properly declined to give each of charges 1, 2, 8, and 4, requested by plaintiff. There Avas certainly a conflict in the evidence or different inferences could properly be drawn from tbe evidence as to some of the material averments in each count. This being true, the affirmative charge could not be properly given to either party. Charge 2 ignored one of the material averments — that the explosives were stored in a thickly settled portion of the town of North Birmingham— without which the charge or a similar one could not be good. Charge 3 was bad, in that it ignored the proof of one of the particular explosives alleged to be stored, to wit, powder, and also pretermitted proof of the negligence or want of care alleged. These being material averments, they each required proof before a verdict for plaintiff should be rendered. Charge 4 was properly refused for the reasons assigned as to the second and third charges. Charge 1, given at defendant’s request, was proper. Each count ascribed some cause for the explosion, and, if the particular cause “lay wholly within the realm of conjecture and doubt,” there should not have been a verdict for plaintiff. This was the effect of this instruction, which was proper. It was probably argumentative, but it was not erroneous. The court can give or refuse such charges without committing error. If the jury had found that the storing or keeping of the explosives was a nuisance per se, the cause of the explosion might have been immaterial, but several causes were alleged, and one at least must have been proven, and, if it had been subject to this criticism, the plaintiff should have requested an explanatory charge. If misleading, it is is not, for that reason, necessarily reversible error to give it. This could be cured by an explanatory charge requested by plaintiff. The complaint and each count were based upon some actionable negligence on the part of the defendant or its agent. There should not have been a verdict for plaintiff without proof of this material averment. Charge 2 was therefore properly given. There was no reversible error in the giving of charge 3 to defendant. If subject to any infirmity, it was that it might be misleading in some of its tendencies; and, this being the ease, it could and should have been corrected by explanatory charges, Which were not requested. Much could be said as to the burden of proof in cases like this; for, as is shown above, as to the question of what constitutes a nuisance per se, in the storing or keeping of explosives, the decisions are far from uniform. This may be seen from an examination of the cases of Kinney v. Koopman & Gerdes, 116 Ala. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119; Rudder v. Koopman & Gerdes, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489, and notes thereto, and the case of Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 48 Am. St. Rep. 146, 29 L. R. A. 728, and notes.

The jury, by consent, having inspected defendant’s plant, the ground, the manner, and place of storing the explosives, the location of plaintiff’s property injured; and the character of the damages complained of, it was therefore proper for the court to give charges 4 and 5. They could not be abstract or erroneous. •

Charge 6 was clearly proper. The location of the magazine or the explosives and the manner of storing was one of the material inquiries, and the charge was proper upon this question. It was not at all abstract. This was a disputed question, which the jury only could decide. The use of the word “proper” as modifying place we thing is better than to say “not an improper” place. The one word expresses the same thing as the three, and for this reason the expression used in the charge is better than the one suggested by appellant as necessary to make a correct charge.

Charge 8 ivas certainly not improper. Each count' attributed the injury to some kind of negligence, and, if human foresight could not have anticipated or averted the explosion, surely defendant ivas not liable therefor. If the storing or keeping was not a nuisance per se, the cause of the explosion ivas a material inquiry. Each count attributed it to some one or more causes, and certainly one of these must be proven to support a verdict for plaintiff under any one.

The trial court seems to have carefully and properly declared the law applicable to this case. The case was properly submitted to a jury, who not only heard the evidence, saw the witnesses, but viewed and personally inspected the locus in quo at the request of both parties and returned a verdict for defendant.

Finding no reversible error, the judgment must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.