American Glycerin Co. v. Eason Oil Co.

• Decision Date: 15 August 1938
• Docket Number: No. 1617.,1617.
• Citation: 98 F.2d 479
• Parties: AMERICAN GLYCERIN CO. v. EASON OIL CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

98 F.2d 479 (1938)

AMERICAN GLYCERIN CO. v. EASON OIL CO. et al.^*

No. 1617.

Circuit Court of Appeals, Tenth Circuit.

April 29, 1938.

Rehearing Denied August 15, 1938.

G. C. Spillers, of Tulsa, Okl. (C. M. Spargo, of Wilmington, Del., and Chas. L. Yancey, of Tulsa, Okl., on the brief), for appellant.

P. C. Simons and E. B. Mitchell, both of Enid, Okl. (L. E. McKnight, R. W. Simons, and L. W. McKnight, all of Enid, Okl., on the brief), for appellees.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The parties will be referred to in the order in which they appeared in the trial court.

The Eason Oil Company, a corporation, plaintiff, with its coplaintiffs, Marion Oil Corporation, a corporation, and Grisso Royalty Corporation, a corporation, were engaged in the operation of the well in question located in the Oklahoma City oil field. The defendant, American Glycerin Company, a corporation, engaged in the business of shooting oil wells in that and other fields, through its employee and agent, Ernest Taylor, solicited the business of the plaintiffs in shooting said oil well. At that time, J. F. McKaig, an employee of plaintiff, Eason Oil Company, was its farm boss or district superintendent in charge of the well, which had been shot once, McKaig concluding to again have it shot. On prior occasions, in the shooting of wells for the Eason Oil Company, tin shells had been used by the shooter, considerable debris being left in the well occasioning trouble in bailing the same. Taylor, on soliciting this business from McKaig, was informed that he had had difficulty in cleaning out the holes after the use of tin shells, when Taylor, according to his own evidence, informed McKaig as follows: "I told him I had heard that Mr. Rison had some kind of a composition there that never left anything in the hole."

McKaig, in his evidence, said:

"I met him when he came over to see about shooting wells. We had used tin shells in making prior shots and had trouble bailing this tin out of the hole. Mr. Taylor told me about Risonite or paper shells. He said the dope that he had on these Risonite shells were that when they were exploded, that they would burn up, deteriorate, to where there would be no bridge in the well to bother with bailing out, cleaning out the job.

"I told him I didn't know anything about it, but if that was true, that would be a good shell to use. I had never seen one of these shells before. The first time I saw one was on the day of the explosion. Taylor and I talked about these shells for about two weeks, and in the meantime I had talked to Mr. Lindley, and Mr. Lindley talked to Mr. Eason, and it was agreed that it would be agreeable to go ahead and use the Risonite shells, and Mr. Taylor said they could get them through Mr. Rison of the I. T. I. O. and they would furnish the shells and invoice us for the shells with the shot."

Thereafter, on December 8, 1933, McKaig called Taylor, telling him that they were ready to shoot the well. The next morning the shooters, Capps and Taylor, arrived on the lease with the machines, Taylor having, in the meantime, made arrangements with Rison, the manufacturer of these shells, to furnish defendant with the shells to be used in shooting this well. On the morning of December 9, when this well was to be shot, the employees of the defendant first ran a feeder into the well to test its condition to determine whether the shells would go down when lowered, and measuring the hole to determine just where the shot was to be located.

The truck of the defendant being engaged, Taylor asked McKaig to take his car and go with him to the place of business of Rison, the manufacturer of these shells, at the I. I. I. office, and McKaig accordingly took Taylor in his car.

Taylor stated in his evidence:

"In measuring the well I tied a gage on the torpedo line to see if the well was on bottom. The gage went through the pipe clear to the bottom of the well. We encountered no difficulty in getting down or coming up, ran into no splinters and I concluded everything was clear and got ready to do the shooting. After that I asked McKaig for the first time to go over with me and get the shells, because our wagons were in use. At my request he took his car and went over to the I. T. I. O. place where we talked to Mr. Lowry, representative of Mr. Rison. * * * I had some conversation with Mr. Lowry, or Mr. Rison, about how many shells we should run at once. Mr. Lowry said he recommended running two shells. Lowry was superintendent for the I. T. I. O. under Mr. Rison.

"* * * Mr. Lowry's recommendation to use two shells was followed on the first shot."

Taylor and Capps proceeded to run the first two shells into the well.

In his evidence, Capps said: "We proceeded to lower the shells to the bottom of the hole in the usual and ordinary manner, unhooked from them and reeled in the line."

After the first two shells had been run into the well in the usual and ordinary manner, and in conformity with the recommendations of Rison and Lowry, a man by the name of P. O. Wall, who was an oil field inspector of the Fire Prevention Bureau of the Fire Department of Oklahoma City, insisted that the work of running this nitroglycerin into this well would have to be speeded up, and inquired how many shells they were running at a time, and was told two in conformity with the recommendations of Rison and Lowry, and they discussed the question as to whether they were to abide by the recommendations of the manufacturer of the shells or whether they should run more than two shells at once. Wall said he would go and talk to Rison over the phone about it, which he did, and. Rison, again, recommended that they run only two shells at one time. Wall, coming back, reported his conversation to Taylor and Capps, but, on account of the urging of Wall that more speed must be had, they concluded to run three shells at one time, although in violation of the recommendations of the manufacturer.

They then proceeded to attach three shells to the line, attempting to run them into the well. The line or cable which was being used by the employees of the defendant to run these shells into the well also was improperly and carelessly spooled upon the reel used for handling the line, by being unevenly spooled, crossing over itself, and piled upon the reel so that when the three shells were run into the hole there was a jumping and jerking of the line with the three shells attached thereto. Each shell was 8 feet in length, making a total length of 24 feet, weight being approximately 133 pounds when loaded with the nitroglycerin. The shells being lowered into the well too fast in view of the fact of a rough line and too many on the line, the result was that at the depth of 2,300 feet from the surface the shells broke loose from the line and dropped to the fluid level in the well, approximately 3,700 feet below the surface. Contact with the fluid caused them to explode, collapsing the pipe, destroying the hole, and filling it full of mud and water. This made it necessary for plaintiffs to do a large amount of work pulling the pipe out of the hole, cleaning out the well, replacing the pipe to again get the well in shape to produce. In doing this work and repairing the damage, plaintiff incurred an expense of $36,163.95. On the trial the only controverted question was as to liability of defendant, as to whether accident was occasioned by its negligence.

On page 15 of appellant's brief, it is said: "There was an attempt to introduce an itemized statement without proof of the reasonable value of the services rendered."

As disclosed by the record, evidence was introduced to the effect that every item included in this statement was the usual and customary charge both for materials and labor, no objection made thereto on ground that it was incompetent, but as to immateriality.

The witness Flore testified that he was the chief bookkeeper in the production department of the Eason Oil Company and that plaintiff's Exhibit A, the original of which was attached to the petition, was a complete list of the costs of reconditioning the well, and that it reflected all the charges made, same being compiled from the original invoices as furnished by the supply companies and contractors, original field pay rolls, field orders from the lease superintendent, the originals of all these papers, including pay rolls, and invoices for all materials purchased, and vouchers for each item as disclosed by the itemized statement were in the courtroom for inspection and objection and exception, etc., it being testified that all of same had been paid.

The witness Hatton, who was the purchasing agent and assistant secretary of the Eason Oil Company, testified that he had examined Exhibit A and the original vouchers from which it was prepared, and that it was true and correct, and that the items therein set out were the customary, usual, necessary and proper charges at the time the expenses were incurred, and that the salaries and wages paid were customary at that time for such work.

Not a question was asked by attorney for defendant of either of these witnesses or of anyone about this itemized statement, or the reasonableness of the charges, and no evidence offered to controvert same.

Plaintiffs' petition alleges various acts of negligence on part of defendant, averring that some, or all of which, combining and concurring, caused the premature explosion and the consequent damage. The bail of the top shell which sustained the weight of itself and the two shells hooked onto it pulled out or broke, caused by the negligent manner in which the defendant ran these shells into the well in violation of manufacturer's instructions with a line jumping and jerking due to the improper spooling of line or cable upon the reel, which together with the extra weight of the added shell caused the same to break loose. It is admitted by the defendant on ...