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Peet v. Dolese & Shepard Co.

MAY 23, 1963.

CHARLES W. PEET AND EILEEN D. PEET, HIS WIFE, PLAINTIFFS-APPELLEES,

v.

DOLESE & SHEPARD CO., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. JAMES V. BARTLEY, Judge, presiding. Affirmed.

CROW, J.

Rehearing denied June 14, 1963.

The plaintiffs, Charles W. Peet and Eileen D. Peet, his wife, the owners of certain premises located in Joliet, sought damages from the defendant, Dolese and Shepard Co., for alleged injuries to their residence allegedly caused by blasting operations, by explosives, in the defendant's stone quarry. The complaint was filed January 29, 1960. The defendant answered, admitting it used explosives, alleging that the loading of the explosives was insufficient to cause the damage, and alleging the blasting practices were in accordance with customary practices in safe quarry operations. The case was tried without a jury and the Court found for the plaintiffs and assessed damages at $3,000, for which a judgment was entered. The defendant appeals.

The defendant's theory is that the plaintiffs failed to establish that the acts of the defendant caused the alleged damage and that the judgment is against the manifest weight of the evidence. The plaintiffs' theory is that the blasting did damage their residence, the judgment for $3,000 is justified, and certain seismological evidence presented by the defendant, though admissible, is not truth per se but is to be weighed and considered with all the other evidence.

The plaintiffs' evidence consisted of the testimony of the plaintiff Charles W. Peet, Mrs. Ann Naughter, the mother of Mrs. Peet, and Levon Seron, an architect, engineer, and a graduate of Massachusetts Institute of Technology, as an expert witness.

The defendant offered as witnesses Tim Lewellen, Superintendent of National Stone Company, which is owned and operated by Dolese and Shepard Co., and Jules E. Jenkins, a registered engineer, specializing in seismological disturbances and the measurements of industrial noises, as an expert witness.

The defendant, at the outset, complains of allegedly incompetent reporting of the proceedings had in the trial court; says that it has a constitutional right to a review; and says that the present transcript certified to by the Trial Judge takes from the defendant its right to review. The defendant refers us to no authorities on this point. The Trial Court in its final order stated as follows:

"The Court is advised that in abstracting the transcript of testimony, the questions and answer as set forth in court reporter's transcript pages 152 to 209, inclusive, are so inaccurately set forth that it was next to impossible to prepare an abstract which would be of any help to this court or make sense. An attempt was made to abstract those questions and answers which bore some semblance of reason."

The plaintiffs contend that if there was any question as to the accuracy of the transcript the defendant's remedy (at least initially) was before the Trial Court and not the Appellate Court. We think the plaintiffs' contention is, in substance, correct, but, nevertheless, in reviewing the testimony we have been confronted with some apparent inaccuracies therein and the difficulty at times of attempting to read understandingly certain portions of the testimony as shown by the abstract. Part of this may be due to faulty reporting. Part, however, may be due to faulty abstracting. The plaintiffs have filed a supplemental abstract. Apparently the defendant took no steps in the Trial Court to object to the reporter, or her competency, or to the transcription. The record bears the customary certificates of the Trial Judge and the Clerk. For present purposes it will have to be accepted and considered sufficient. No application was made by the defendant to the Trial Court to make the record speak the truth, if it was deemed not to, or speak any differently than it does: Anderson v. Anderson (1942), 380 Ill. 435, 44 N.E.2d 54.

Charles W. Peet testified that he and his wife own their home; they've lived there 14 years; it is about 37 years old; at approximately 4:00 or 4:30 p.m., on March 8, 1957, he was home; about 5:00 p.m. there was set off a blast at the stone quarry to loosen stone. It was noticeable and quite heavy. Plaster cracked. Dishes fell out of a cupboard. Shortly thereafter he went to the basement where he noticed a vertical crack on the east wall. On the west wall there was a half inch opening. There were plaster cracks in the living room, and in the bedroom. He heard other blasting from 1957 to 1959; in March, 1958 there was heavy damage; on April 12, 1959, a large stone from a blast landed in his yard, hit his truck, and fine gravel hit the roof of his house; on March 19, 1958, more plaster was cracked in the kitchen and around the chimney from the basement to the top of the house; the cracks allegedly caused by the blasting of March 8, 1957 were not in the house prior to that time. The blast vibration shook the house, plaster chipped, there were finger sized cracks. His house is 800-1000 feet east of the quarry. The blast came in a northerly or westerly direction from the quarry. He stated that prior to March, 1957 he never had occasion to go down and examine the basement for cracks, there were no cracks in the basement from 1947 to 1957, and that he noticed immediately after the blast of March 8, 1957 the vertical crack in his basement wall. There were certain photographs of the basement walls in evidence. The rock that hit his truck in April, 1959 was in evidence. The defendant settled for the damages done by that rock. The basement walls were eight inch concrete blocks.

Mrs. Ann Naughter, mother of Mrs. Peet, testified that a heavy blast shook the house on March 8, 1957 a little after 4 p.m., and that it came from the quarry. Later there was a hard blast. It felt like a tornado. It rocked the house. There was dust. The air got heavy. There were cracks by the chimney, the front door, and in the dining room.

Levon Seron, architect, engineer, graduate of Massachusetts Institute of Technology, and licensed real estate broker, testified he viewed the premises in November, 1961 and examined the cracks and the general area of the home. He found the first floor plaster cracks, basement exterior walls cracks in the concrete block foundation on the interior and exterior, and cracks over the front door which were not straight but irregular. He described other cracks in the bedrooms, kitchen, etc. He said if blasting had occurred in close proximity such could cause certain of the cracks. He testified that in his opinion the house would have to be repaired, and there would have to be some replacement; it would cost from $200 to $250 for plaster patching and repair; the foundation would require some replacement, would necessitate raising the house, removing the blocks, $2,000 to crib and protect and get the preparatory work done to build the foundation walls; to replace the blocks and backfilling would cost $2,000; and that it would cost, he felt, between $4,000-$5,000 to put the property in good condition. He further testified that the horizontal cracks might be caused by earth pressure, and that in his opinion from $500 to $1,000 could be attributed to previous conditions or natural causes, not to blasting, and about $3,500-$4,000 to blasting. There are, he said, other causes for wall cracks than blasting. Certain of these cracks could have been caused, or aggravated by blasting.

The Court asked Seron the following questions:

"Assuming that the blasting from Dolese and Shepard Company caused the damage in this house, would there be some force extended through the air or through the ground, ...


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