Bickham v. Gulf Refining Co. of Louisiana

• Decision Date: 31 May 1926
• Docket Number: 26656
• Citation: 161 La. 734,109 So. 405
• Court: Louisiana Supreme Court
• Parties: BICKHAM et al. v. GULF REFINING CO. OF LOUISIANA

109 So. 405

161 La. 734

BICKHAM et al. v. GULF REFINING CO. OF LOUISIANA

No. 26656

Supreme Court of Louisiana

May 31, 1926

Rehearing Denied June 28, 1926

Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge.

Action by Taylor Bickham and others against the Gulf Refining Company of Louisiana. Defendant's exception to the suit was sustained, and plaintiffs appeal.

Affirmed.

Foster Hall & Smith, of Shreveport, for appellants.

Thigpen, Herold, Lee & Cousin, of Shreveport, for appellee.

OPINION

OVERTON, J.

In February, 1913, the Gulf Refining Company, made defendant herein, secured from W. E. Barnhart a mineral lease on certain land in the parish of Caddo. Defendant exploited the land, under the lease, for oil and gas, and discovered the former in large and the latter in small quantities.

About a year later, plaintiffs in this case, together with others, brought suit in the district court for the parish of Caddo, claiming a one-fifth interest in the land leased by Barnhart to defendant. Plaintiffs were successful in that suit, and on appeal the judgment rendered was affirmed on rehearing. Liles et al. v. Pitts et al., 145 La. 650, 82 So. 735.

Shortly after the judgment rendered on appeal, in the foregoing case, became final, all of the plaintiffs brought suit against Barnhart and the defendant herein for one-fifth of the value of the oil and gas, taken by defendant from said land, less the reasonable cost of production, and to obtain other relief, unnecessary to mention here. The action in that case was one in tort, based upon the ground that the oil had been wrongfully taken from the land. The defendant herein pleaded in that suit the prescription of one year against the demand of the plaintiffs therein for the value of one-fifth of the oil and gas extracted, on the theory that the demand of plaintiffs, in so far as relates to the value of the oil, was one for damages, arising from a tort. The contention of plaintiffs in that case was that the action was not one for damages based on a tort, but was one for money unduly had and received by defendant, and was prescribed only by ten years on the theory that plaintiffs were under a quasi contract to return the money, so received, to plaintiffs. The trial court held that the suit, as to the value of the oil and gas extracted, was one for damages based on a tort, and sustained the plea of prescription of one year, allowing plaintiffs only a one-fifth interest in the value of the oil and gas extracted during the year immediately preceding the institution of the suit. On appeal, in passing on the foregoing question this court said:

"It is possible for one to have a moneyed demand against another upon which he may sue in tort, or upon a contract, or quasi contract. In such instances, he may disregard the contract or quasi contract and bring the action arising from the tort. The form of the action, in such instances, that plaintiff elects to bring, determines the prescription applicable. Morgan's Louisiana & Texas R. R. & S. S. Co. v. Stewart, 119 La. 392, 44 So. 138; Sims v. New Orleans Ry. & Light Co., 134 La. 897, 64 So. 823. Therefore, as to whether the contention of plaintiffs or defendants is correct, as to the applicability of the prescription of one year, involves, in part, an examination of the allegations and prayer of plaintiffs' petition."

After examining the allegations and prayer of plaintiffs' petition, this court said:

"The present phase of plaintiffs' suit is nothing more than one for damages, for a quasi offense, the amount of which is the value of the oil and gas. In no sense is it a suit for money had and received. Therefore the authorities cited by plaintiffs, based upon that hypothesis, are not pertinent."

This court, after making the foregoing statements, affirmed the judgment of the lower court on this phase of that case, thus sustaining the prescription of one year, and thus allowing plaintiffs only one-fifth of the value of the oil and gas extracted during the year immediately preceding the filing of the suit. Liles v. Barnhart, 152 La. 419, 93 So. 490.

After the foregoing case was decided some of the plaintiffs therein brought the present suit, demanding of defendant one-third of one-fifth, as their portion, of the price received by defendant for the oil and gas extracted and sold prior to July 18, 1918, as for money unduly had and received by defendant from the beginning of operations to July 18, 1918; this being the period covered by the prescription of one year, sustained in the preceding suit.

Against this suit defendant filed the following exception:

"That in suit number of the docket of this court (the preceding suit), these plaintiffs elected to claim and base their cause of action for the recovery of oil, for the value of which they here sue, on an offense, or quasi offense, and are now estopped by such judicial admissions from claiming said oil or its value on any other legal theory, which said estoppel is here specially pleaded.

"That the final and definitive judgment sustaining said plea of prescription and rejecting the demands of plaintiffs for judgment for the value of the oil taken from said property up to July 20, 1918, as claimed in this suit, constitutes res judicata against the demands herein asserted and is a complete and peremptory bar thereto."

The trial court sustained this exception, and plaintiffs have appealed.

The exception is based on the judgment rendered in Liles et al. v. Barnhart et al., 152 La. 419, 93 So. 490, to which the litigants herein were parties, and which, as we have seen, was rendered in a suit for the value of the oil and gas wrongfully extracted from the land. The position of plaintiffs with reference to the exception is that, when this court said (in passing on the plea of prescription of one year filed in that case, and in sustaining it in part, as appears from the excerpts, quoted above) that it is possible for one to have a claim against another upon which he may sue in tort, or on contract, or quasi contract, and when he has such a claim, he may disregard the contract or quasi contract, and sue on the tort, and that, in bringing their suit, plaintiffs elected to disregard the quasi obligation of defendant to return to them the price received by it for their portion of the oil and gas wrongfully extracted from the land, and to sue instead, in tort, for damages consisting of the value of their portion of these minerals, the court, by so ruling, excluded from consideration their present demand, which is a demand for the price received by defendant for their portion of the gas and oil extracted, and therefore that their present demand does not enter into the judgment rendered, and is not precluded thereby. The position of plaintiffs also is that the...