On appeal from Superior Court, Appellate Division, whose opinion is reported in 29 N.J. Super. 545.
For reversal -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs. For affirmance -- None. The opinion of the court was delivered by Burling, J.
[16 NJ Page 299] This is a civil action sounding in tort, grounded in alleged actionable negligence of the defendant, Hercules Powder Company, a corporation of the State of Delaware authorized to transact business in the State of New Jersey, for damages alleged to have been inflicted on the plaintiff, Stanley Company of America, also a Delaware corporation authorized to transact business in the State of New Jersey, namely structural damage to one of the plaintiff's theatres (termed the Baker Theatre) at Dover, New Jersey, and loss of profits during temporary suspension of performances at the theatre while repairs were being effected. The alleged cause of this damage was detonation on June 21, 1948 of explosives at a manufacturing plant operated by the defendant at Kenvil, New Jersey. The action was instituted by the plaintiff in the Superior Court, Law Division, (Essex County) by complaint filed August 22, 1952. The venue was changed to Morris County (the situs of the allegedly damaged
property of the plaintiff) by order of the Superior Court, Law Division, dated September 11, 1952. Following a lengthy trial a verdict was rendered by the jury in the present matter for the plaintiff in the amount of $40,000. The ensuing judgment entered February 14, 1953 was appealed by the defendant to the Superior Court, Appellate Division, and was affirmed on February 18, 1954. Stanley Co. of America v. Hercules Powder Co., 29 N.J. Super. 545 (App. Div. 1954). We allowed certification on the defendant's petition. 15 N.J. 382 (1954).
In passing it is noted that the plaintiff's complaint contained a second count, premised upon the allegation that the defendant's operations at Kenvil constituted the maintenance of a nuisance. This count was dismissed with prejudice by the trial judge after the plaintiff had introduced its evidence as to liability, on the defendant's motion, upon the ground that the plaintiff as a matter of law had not made out a prima facie case of nuisance. Rule 3:41-2(b) as amended January 1, 1953, now R.R. 4:42-2(b). The plaintiff cross-appealed the dismissal to the Superior Court, Appellate Division, but prior to hearing there the cross-appeal was dismissed by stipulation, without costs to either party. The nuisance count, and dismissal thereof, therefore is not under review on the present appeal.
Also at the close of the plaintiff's introduction of evidence as to liability, Rule 3:41-2(b) as amended, supra, now R.R. 4:42-2(b), supra, the defendant moved for dismissal of the plaintiff's claim insofar as it was laid upon the theory of negligence, for lack of proof of negligence, and for asserted failure of the plaintiff to establish a causal relation between the alleged damage to the plaintiff's property and any act of the defendant. The trial court denied the defendant's motion to dismiss the negligence count of the complaint.
In the disposition of this type of case it is helpful as an introduction to draw a terse picture of undisputed facts. The Hercules Powder Plant at Kenvil (hereinafter called the Kenvil plant) occupied "in round figures" 8,000 acres of land principally located in Roxbury Township, Morris
County, New Jersey. It was located 4 1/4 to 4 1/2 miles to the west of the Baker Theatre, which is on West Blackwell Street, in Dover. On June 21, 1948 the defendant was the owner of the Kenvil plant and was operating it, including the three buildings in which the detonation of explosive substance admittedly occurred. The three buildings were located 400 to 500 feet apart, one from another in a triangular arrangement. One structure contained 7,000 pounds of nitroglycerin, another 12,500 pounds thereof, and the third building 11,400 pounds of the same substance. The detonation of explosives occurred on a Monday. The alleged damage to the Baker Theatre was discovered by the porter of the theatre on the subsequent Friday morning, when he noticed plaster on the floor of the balcony and a crack in the ceiling. Inspection by a structural engineer on June 28 and 29, 1948, disclosed that two of four wooden trusses supporting the roof of the theatre were cracked. These were the two nearest the street. There were five trusses in all, one, being the truss nearest the street (i.e., between the street and the two cracked trusses), was steel and had been substituted for a wooden truss in 1926 or 1927. The theatre had been erected "about 1905." Sound equipment was installed and the theatre redecorated in 1934. A structural engineer had inspected the building in 1941 and 1942 at which time the wooden trusses were found to be "basically in sound condition," although reinforcement of one of the trusses was recommended and effected. An examination of the theatre was also made in 1945 at which time a recommendation was made that some repairs to one of the trusses be effected to strengthen it, but the plaintiff's witness "did not think" this was done.
The Baker Theatre was closed for repairs from June 27, 1948 to July 10, 1948 and from June 6, 1949 to July 16, 1949. The repairs to the trusses in 1948 consisted of clamping the ends of the two cracked trusses and those in 1949 consisted of installation of steel girders to carry the whole roof load as well as the old wooden trusses. The old wooden trusses were not discarded.
The foregoing description of the circumstances does not include the details of the testimony on the basic elements of this negligence action but indicates the general nature of the occurrences which were subjected to trial. With this before us we proceed to the disposition of the appeal.
The questions involved on the appeal include whether the trial court erred (a) in admitting and later refusing to strike opinion testimony by a plaintiff's witness as to causal connection between the detonation of explosives at the Kenvil plant and the damage to the Baker Theatre; (b) in denial of the defendant's motion for judgment of dismissal at the close of the plaintiff's case as to liability, R.R. 4:42-2(b), and for judgment under R.R. 4:51 at the close of the plaintiff's entire case and at the close of the entire reception of evidence; (c) in precluding the defendant from inquiring into the reasons underlying its own expert's opinion as to causation; (d) in allowing proof of repairs to portions of the Baker Theatre as to which no proof of damage was introduced; (e) in allowing proof of damage to property of other persons not involved in this action; (f) in its rulings concerning the introduction of evidence relative to loss of profits; and (g) in failing to charge requests of the defendant relative to proximate cause and foreseeability for harm.
We are not called upon in the consideration of the questions involved in this appeal to apply the established test that negligence must be proved and will not be presumed. The trial court disposed of this facet of the case upon the theory of res ipsa loquitur, although observing that the plaintiff must, even under this theory, establish causal connection between the occurrence and the damage allegedly sustained as a result thereof. The defendant asserted on this appeal that "although defendant does not concede that the facts warranted the invocation of that doctrine, it desired not to make that a ground of appeal." We therefore do not consider on this appeal whether the defendant's motions for dismissal or for judgment at the close of the case should have been granted for failure of the plaintiff to prove negligence at the Kenvil plant of the defendant.
The emphasis of the defendant's appeal insofar as causation is concerned is placed upon alleged trial errors in relation to expert opinion evidence on the issue of causal connection between the alleged damage and the admitted detonation of explosives. In this respect the plaintiff asserts that the error, or errors, if any existed, did not prejudice the substantial rights of the defendant because there was other proof of causation. We find to the contrary.
In the plaintiff's case as to liability, prior to the defendant's motion to dismiss made before the plaintiff proceeded to prove the cost of repairs, R.R. 4:42-2(b) supra, there was proof that there were 7,000 pounds of nitroglycerin in one of the defendant's buildings, 11,400 pounds in a second building and 12,500 pounds in a third building, and that these quantities of nitroglycerin exploded in a series of explosions; that on the day of this occurrence the Baker Theatre manager "heard an explosion" which, he testified, "threw me out of my chair"; that the Baker Theatre porter heard a "big blast" which, he testified "almost rocked me out of my chair"; that two housewives testified that they heard an explosion on that day and afterwards discovered cracks in the walls of their homes in Dover, each one several blocks from the Baker Theatre. There was testimony that a few days after the day of the occurrence fallen plaster was discovered in the Baker Theatre (the plaintiff admitted on this appeal that "no one knows exactly when the plaster fell"), and a crack in the ceiling was observed following which investigation of the building disclosed two damaged trusses. A structural engineer had testified that there was no evidence of dry rot, borers, fungus, or deterioration in the two damaged wooden trusses, that the cracks indicated they resulted from "a very large force or forces suddenly applied, and applied within a short period of time" and that they were "definitely recent cracks as of that date," namely, June 28 and 29, 1948. He testified that by "recent" he meant that it "was something that happened within a
matter of weeks or a month or some such period as that" and was "Oh, about a month." There was also testimony that the wooden trusses at the time of the occurrence were carrying a dead load of 30 pounds per square foot and could carry a total dead and live load up to 50 pounds per square foot but, beyond that, fracture would take place. There was testimony that wind, snow and air blast are all forms of "live" load. And one of plaintiff's experts testified that an additional instantaneous live load of ten pounds per square foot would be in excess of the strength the four wooden trusses could bear. This, of course, is not all the testimony, but shows the quality of proof. It was repeated in various forms by several witnesses for the plaintiff. Assuming the truth of these elements, there was no proof that there was generated by the detonation of explosive substance an air blast of sufficient proportions to effect an instantaneous live load of ten pounds per square foot upon the roof of the Baker Theatre unless resort was had to the testimony of a Dr. Bleich, an expert witness for the plaintiff. This was testimony to which the defendant addressed numerous objections at the trial, the overruling of which the defendant asserts was error.
Dr. Bleich appears to have been competent to testify as an expert in the field of effects of explosions on buildings, at least to the extent that acceptance of his educational and experiential qualifications in that respect constituted no abuse of discretion on the part of the trial judge. In re Plainfield-Union Water Co., 14 N.J. 296, 307 (1954); Carbone v. Warburton, 11 N.J. 418, 424-425 (1953). The defendant has not questioned the rulings of the trial court in this connection.
The defendant, relying on Guzzi v. Jersey Central Power & Light Co., 12 N.J. 251, 256, 257 (1953), contended on this appeal that Dr. Bleich's testimony itself was not "competent" because there was no proper foundation laid therefor. Dr. Bleich testified he had no knowledge of the prior condition of the Baker Theatre trusses and that he had made no computations as to how much live load the Baker
Theatre roof or trusses could carry. He testified that he had never seen the Baker Theatre. The Guzzi case, supra, held that
"* * * the eventual concession (of lack of knowledge) made by the witness would seem to be a disavowal of the requisite testimonial expert qualifications, or, at the very least, an unsureness that militates against the trustworthiness of his opinion."
Under the circumstances here obtaining the direct application of the Guzzi case, supra, which related to expert or experiential knowledge as opposed to specific knowledge of the physical structure involved in the inquiry, is not available to the defendant. However, the lack of proper foundation for the expert's specific testimony has been held to render a general inquiry of an expert as to structural characteristics of a building objectionable. Spinelli v. ...