Avery v. Wallace
| Citation | 224 P. 515,98 Okla. 155,1924 OK 129 |
| Decision Date | 05 February 1924 |
| Docket Number | 12447. |
| Parties | AVERY v. WALLACE. |
| Court | Supreme Court of Oklahoma |
Rehearing Denied March 25, 1924.
Syllabus by the Court.
Where plaintiff's petition alleges in effect that defendant carelessly and negligently permitted deleterious substances to escape from his oil well and flow out over plaintiff's land, destroying portions thereof for agricultural purposes and occasioning a fire which destroyed valuable timber and meadow grass, it states a cause of action in favor of the plaintiff and against the defendant, and is sufficient to withstand general demurrer.
Evidence offered on the part of plaintiff to show loss and damage to property which tends to show the actual value of the property immediately before the injury and its actual value immediately afterwards is competent to go to the jury for the purpose of determining the amount of plaintiff's loss and damage.
An instruction upon the measure of damages to plaintiff's property, which advises the jury that the damage, if any, is the difference between the actual value of the property immediately before the injury and the actual value of the same property immediately after the injury, is proper.
Where several parties, acting together or acting independently of each other, purposely or carelessly and negligently do such acts as to do injury resulting in damage to another, such injured party may maintain an action against all or against any one or more less than all of such parties for the entire amount of damage done; and where such injured party brings action for the damage done against one of such parties it is not error for the court to instruct the jury that, if they find from the evidence that the defendant, along with others did the injurious acts resulting in damage, the plaintiff may recover from the one sued the entire amount of damage sustained by reason of such acts.
Record examined, and held, that no substantial error appears therein prejudicial to the rights of the plaintiff in error, and that the judgment should be affirmed.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Tulsa County; A. C. Brewster, Special Judge.
Action by Lucille Wallace, a minor, by John W. Wallace, her guardian, against Cyrus S. Avery. From a judgment for plaintiff, defendant appeals. Affirmed.
Geo. E Reeves, of Tulsa, for plaintiff in error.
Geo. W Boone, of Tulsa, for defendant in error.
The parties to the action will be referred to as plaintiff and defendant as they appeared in the trial court.
The plaintiff, Lucille Wallace, a minor, by her guardian, John W. Wallace, commenced this action in the district court of Tulsa county by filing her petition therein on the 10th of September, 1919. The petition in effect charges that the plaintiff is the owner of a certain 80 acres of land in Tulsa county; that on the _______ day of February, 1916, the defendant drilled in an oil well on a certain piece of land adjacent to plaintiff's land, at or near the head of a branch which led over and drained across plaintiff's land; and defendant carelessly and negligently permitted salt water and other deleterious substances to escape from his well or wells and flow out down the drain and across plaintiff's land, and killed and destroyed about 7 acres of plaintiff's land for agricultural purposes, and occasioned a fire along the drain and on land of plaintiff adjacent thereto, destroying valuable trees and meadow grass, all to plaintiff's damage, in the destruction of meadow grass in the sum of $600, of trees in the sum of $250, and land the sum of $700; and prayed judgment in the sum of $1,550.
The defendant filed a general demurrer to the petition, which was overruled, and exception allowed. The defendant thereafter filed a general denial by way of answer to the petition. The cause was tried to a jury on the 21st of February, 1921, resulting in a verdict and judgment in favor of the plaintiff in the sum of $600. The defendant prosecutes this appeal by case-made, and the cause is regularly here for review.
The defendant presents errors which we will consider under the following subdivisions: (1) That the court erred in overruling the demurrer to plaintiff's petition; (2) that the court erred in admitting certain testimony offered on the part of the plaintiff; and (3) in excluding certain testimony offered by defendant; (4) in giving certain instructions objected to by defendant; (5) and in refusing to give certain instructions requested by defendant; (6) that the court erred in rendering judgment for plaintiff.
We have carefully examined the petition of plaintiff, and find that it alleges that the defendant carelessly and negligently permitted deleterious substances from his oil wells to escape and flow out and over plaintiff's land, destroying certain of her land for agricultural purposes, and occasioning a fire which destroyed valuable timber and meadow grass, and occasioned a loss to plaintiff of future crops of meadow grass, all to her damage. We think the petition was sufficient to withstand general demurrer.
Under the second proposition, defendant complains of the introduction of certain evidence offered by the plaintiff to show her damages. The effect of the testimony complained of was to show the value of the land immediately prior to it being overflowed by the deleterious substances from the defendant's oil well, and the value of the land immediately after the overflow. The testimony tended to show that the land was worth $100 per acre before the overflow and nothing afterwards; that the overflow had killed the land for agricultural purposes to the extent of about 7 acres. We think proof of the value of the land immediately before the overflow and its value immediately afterwards was a proper way to arrive at the amount of damage to the land. This properly shows the diminution in value. Tootle v. Kent, 12 Okl. 674, 73 P. 310; St. Louis, I. M. & S. Ry. Co. v. Weldon, 39 Okl. 369, 135 P. 8; C., R.I. & P. Ry. Co. v. Galvin, 59 Okl. 258, 159 P. 1153, L. R. A. 1917A, 365; Armstrong...
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