Opinion
35361.
DECIDED JANUARY 27, 1955. REHEARING DENIED FEBRUARY 24, 1955.
Action for damages. Before Judge Pharr. Fulton Superior Court. June 18, 1954.
Robert G. Young, Edgar A. Neely, Jr., Marshall, Greene Neely, for plaintiff in error.
Gambrell, Harlan, Barwick, Russell Smith, contra.
The allegations of the petition as finally amended — to the effect that the employer of an independent contractor procured the latter to remove embedded rock by means of blasting, with the simultaneous discharge of large quantities of highly explosive materials, which blasting operation according to previous knowledge and experience was in its nature dangerous to others, however carefully performed, and that the negligence of the independent contractor in discharging the highly explosive materials, proximately resulted in the injuries complained of — were sufficient, as against demurrer, to set forth a cause of action.
DECIDED JANUARY 27, 1955 — REHEARING DENIED FEBRUARY 24, 1955.
Mrs. Dorothy L. Maddox sued Georgia Industrial Realty Company, Inc., and E. M. Beckham, A. C. Pritchett, and W. E. Beckham, who are copartners doing business as E. M. Beckham Construction Company, for damage to her two-story dwelling house, alleged to have been caused by dynamite blasts.
The petition, as finally amended and shaped by orders of the trial court, alleged: (omitting formal parts) "2. Said defendants have injured and damaged your petitioner in the amount of $8,000 by reason of the facts hereinafter set forth. 3. Plaintiff now owns and, at all times hereinafter did own, a two-story dwelling house in Land Lot 110 in the 17th District of Fulton County, Georgia, such house being at the address 80 Palisades Road, N.W.., in the City of Atlanta, and in which house she and her family now and at all times hereinafter mentioned did reside. 4. During the period beginning on or about the first day of June, 1951, and ending on or about the second day of August, 1951, the defendant Georgia Industrial Realty Company was owner of and had control of a certain tract of land located in or about Land Lots 103 and 104 in the 17th District of Fulton County, Georgia, said tract of land lying alongside the tracks of the Southern Railway which crosses the said district from east to west. 5. During the said period, defendant E. M. Beckham, A. C. Pritchett and W. E. Beckham, d/b/a E. M. Beckham Construction Company, pursuant to a contract made by them with the defendant Georgia Industrial Realty Company, the exact contents of which are unknown to the plaintiff but are well known to the defendants, by themselves and through their agents and servants did engage in clearing, grading and leveling the said tract of land and in blasting certain rock and stone formations located thereon. 6. All of the defendants knew prior to the making of the said contract that the performance thereof would require the removal of embedded rock by means of blasting with the simultaneous discharge of such large quantities of highly explosive materials that the bed rock in the vicinity would be caused to tremble and vibrate in a violent and unusual manner and that said performance would be dangerous to plaintiff's said house, however carefully performed. 7. [Stricken on demurrer]. 8. Between the said residential area and the said tract of land belonging to the defendant Realty Company, upon which the said clearing, grading, leveling and blasting was being performed, there is no obstruction to vision or to the passage of air and sound, but on the contrary there is a depression of the earth between the said places. 9. At all times mentioned herein all of the defendants saw and knew of the existence and proximity of the said residential area and the said dwellings. 9A. Underlying the tract of land belonging to the Georgia Industrial Realty Company upon which the aforesaid blasting was being done and extending beneath the surface of petitioner's house and lot as aforesaid, is a subterranean rock formation. It was upon and within certain projections of this said rock formation on the Realty Company property that many of the said blasts were set off, and such blasting in such rock formation was contemplated in the contract heretofore said. 10. Plaintiff's house was and is located on a hill approximately 400 yards away from the place at which the said blasting operations were being performed. At a point within 50 yards of plaintiff's house on said hill, the aforementioned subterranean rock formation breaks ground. 11. At no time did any of the defendants give any warning to the plaintiff that the said blasting was to be performed. 12. Nevertheless, the defendants E. M. Beckham, A. C. Pritchett and W. E. Beckham, d/b/a E. M. Beckham Construction Company, during the period described, by themselves and through their agents and servants, set about performing the said clearing, leveling, grading and blasting by discharging on numerous occasions such large quantities of highly explosive materials in solid bed rock on the said property of the defendant Realty Company that plaintiff's said house and the bed rock and ground thereunder was caused to shake and tremble with unusual force and violence. 13. Said blasts and said discharging of highly explosive material proximately caused plaintiff's said house and the bed rock and ground thereunder to tremble and shake with such force and violence that plaintiff's said house was injured and damaged in the following particulars: (a) The exterior masonry walls were cracked in numerous places. (b) The interior plastered walls were cracked and the paint thereon caused to fall off. (c) A portion of the said house receded and settled and sank downward in the earth causing a misalignment of the frame of the said house so that the floors cracked and many of the doors would not fit their frames. (d) The framing, foundation, underpinning, walls, ceilings, and roof of the said house were shaken, loosened, knocked and twisted out of alignment. 14. The reasonable cost of repairing the aforesaid injury and damage directly caused to plaintiff's house by said blasting and discharges is $7,000. 15. The defendants d/b/a E. M. Beckham Construction Company directly and proximately caused the aforesaid injury and damage to plaintiff's said house by their negligence in the following particulars: (a) In discharging quantities of said highly explosive material in excess of what was reasonably required to its purpose under the circumstances, as aforesaid; (b) In setting and placing said highly explosive material to be discharged in a manner not reasonably required to its purpose under the circumstances, as aforesaid; (c) In tamping and fusing said highly explosive material to be discharged in a manner not reasonably required to its purpose under the circumstances, as aforesaid; (d) In discharging highly explosive material under the circumstances as aforesaid in such excessive quantities as to cause the plaintiff's said house and the bed rock and ground thereunder to shake and tremble in a violent and unusual manner; (e) In setting and placing said highly explosive material as aforesaid in an improper and unreasonable manner so as to cause the plaintiff's said house and the bed rock and ground thereunder to shake and tremble in a violent and unusual manner; (f) In tamping and fusing said highly explosive material as aforesaid in an improper and unreasonable manner so as to cause the plaintiff's said house and the bed rock and ground thereunder to shake and tremble in a violent and unusual manner; (g) In failing to investigate properly, prior to performing said blasting and to discharging said highly explosive materials, the nature of the terrain and of the subterranean rock formations on and around said tract of land of Georgia Industrial Realty Company and on and around plaintiff's said house when such investigation would have shown that blasting on said tract of land would be dangerous to and would injure plaintiff's said house and other residences in said residential area; (h) In blasting and discharging said highly explosive materials on said tract of land of Georgia Industrial Realty Company as aforesaid when they knew or should have known that such blasting or such discharging of highly explosive materials would endanger and injure plaintiff's said house. 16. The defendant, Georgia Industrial Realty Company, directly and proximately caused and is liable for the aforesaid injury and damage to plaintiff's said house by reason of the following facts: (a b) [stricken on demurrer] (c) The defendant, Georgia Industrial Realty Company, is liable for the aforesaid negligence of the defendants d/b/a E. M. Beckham Construction Company in that it employed the defendants d/b/a E. M. Beckham Construction Company to perform said blasting when it knew that performance of said blasting would be in its nature dangerous to plaintiff's said house and to the residences of others in said residential area however carefully performed; (d) The defendant, Georgia Industrial Realty Company, is liable for the aforesaid negligence of the defendants d/b/a E. M. Beckham Construction Company in that it employed the defendants d/b/a E. M. Beckham Construction Company to perform said blasting when it should have known, according to previous knowledge and experience, that performance of said blasting would in its nature be dangerous to and would injure plaintiff's said house and the residences of others in said residential area however carefully performed." The plaintiff prayed for a money judgment and for process.
General and special demurrers were interposed by the defendant, Georgia Industrial Realty Company, to the petition as amended. The trial court overruled this general demurrer to the petition as amended. Certain grounds of its special demurrers to the petition as amended were overruled and other special grounds were sustained.
To the judgment overruling the general and special demurrers of the defendant, Georgia Industrial Realty Company, error is assigned in a direct bill of exceptions, on the ground that the demurrer, on both general and special grounds, to the petition and to the petition as amended, should have been sustained, and the petition as amended dismissed. Demurrers of the other defendants were not passed upon.
Code § 105-502 declares in part: "The employer is liable for the negligence of the contractor. . . 2. If, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed." In Community Gas Co. v. Williams, 87 Ga. App. 68, 80 ( 73 S.E.2d 119), involving injury caused by the explosion of a propane gas tank, this court said: "A proprietor, landlord, owner, employer or contractor, in dealing with an independent contractor or subcontractor, has certain duties relating to the exercise of reasonable care in work which from his knowledge and experience is known to be intrinsically dangerous, which duties are nondelegable. Such acts have been held to include blasting operations." In Louisville Nashville R. Co. v. Hughes, 143 Ga. 206 (1d) ( 84 S.E. 451), a case involving injury done by blasting performed by an independent contractor, it was held that section 2 of Code § 105-502, stating "the second instance in which the employer is liable for the negligence of the contractor, was involved, as it was a matter proper to be submitted to the jury whether as a question of fact, `according to the previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed,' and the court did not err in charging that provision of law, so that the jury might apply it to the evidence in the case."
Code § 81-1001 as amended (Ga. L. 1953, Nov.-Dec. Sess., p. 82) declares among other things: "Either party who amends or attempts to amend his petition or other pleadings in response to order or other ruling of court shall not be held to have waived his objection to such order or ruling." There is no merit in the insistence of counsel for the defendants that, when the plaintiff amended her petition within the 20 days granted in the order of February 8, 1954, she necessarily admitted that the original petition failed to state a cause of action, and that the law of the case was thus established. Adams v. Ricks, ante, p. 494 (86 S.E.2d 329).
The allegations of the present petition as finally amended — to the effect that the defendant, Georgia Industrial Realty Company, procured the defendant, Beckham Construction Company, to remove embedded-rock foundations near an urban residential community by means of blasting with highly explosive materials, and that the latter defendant's negligence in discharging highly explosive materials so as to cause the plaintiff's house and the embedded rock and ground thereunder to tremble in a violent manner, proximately resulted in the injuries complained of — are sufficient, as against general demurrer, to set forth a cause of action. Compare Fleming v. E. I. DuPont c. Co., 89 Ga. App. 837 ( 81 S.E.2d 529).
In so far as there was any merit in the special grounds of demurrer, they were met by appropriate amendment.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.