Breaux v. Magnolia Petroleum Co.

• Decision Date: 19 June 1961
• Docket Number: No. 294,294
• Parties: Alphonse L. BREAUX et al. v. MAGNOLIA PETROLEUM COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 615

131 So.2d 615

Alphonse L. BREAUX et al. v. MAGNOLIA PETROLEUM COMPANY.

No. 294.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1961.

Rehearing Denied July 12, 1961.

John Sheldon Toomer, Elsie May Whitman, Lake Charles, for plaintiffs.

Anderson, Hall, Raggio & Furrar, by Edgar F. Barnett, Liskow & Lewis, by B. H. Hines, Lake Charles, for defendant.

Before FRUGE , SAVOY and CULPEPPER, JJ.

SAVOY, Judge.

Plaintiffs filed this action in tort against defendant alleging that certain cattle belonging to plaintiffs died because they were poisoned by the drilling compound used by defendant in the drilling of a well and which compound containing poisoning escaped from the well location and ran into the water supply in the pasture where plaintiffs' cattle were grazing.

After a trial on the merits, the district judge held that plaintiffs had not borne the burden of proof that the cattle had died because of any fault of defendant and dismissed their suit. Plaintiffs have appealed from the judgment of the district court.

After due consideration of, and examination into the case, we have decided that the judgment appealed from is correct, and adopt as our own the opinion of the district judge and the reasons therein stated for affirming the judgment.

The opinion is as follows:

'This is an action for damages instituted by Alphonse L. Breaux, Dave Domingue, Glenn Hathaway and Isaac Doiron against Magnolia Petroleum Company arising out of the alleged death or loss of cattle owned by plaintiffs. Issue was joined and in due course the case was tried. It is now before the Court for decision on its merits.

'The evidence establishes that during the month of March, 1958, each of the plaintiffs owned several head of cattle which were being pastured on Hackberry Island, an island located in Cameron Parish between the Lake Charles deep ship channel and Calcasieu Lake. At that time an oil well known as 'C. Breaux No. 5 Well' was being drilled on this island under a contract entered into between defendant, as the owner of the oil lease, and Power Rig Drilling Company, as the drilling contractor. The well was located just east of a barn which was being maintained by plaintiffs for their cattle, and some of the drilling mud used in drilling this well escaped from the immediate site of the well and flowed into a pond or low place located immediately north of this barn.

'Plaintiffs contend that some of the drilling mud of materials used in the drilling of this well contained arsenic, that defendant negligently permitted some of these poisonous substances to escape from the well and to contaminate the water and pasture in that area, that a number of plaintiffs' cattle consumed some of this poison while grazing or drinking water, and that as a result thereof several of their cattle died. One of the defenses urged by defendant is that none of the materials used in drilling the C. Breaux No. 5 well contained arsenic or metallic poisoning of any kind, and for that reason defendant could not be held responsible for the death of plaintiffs' cows.

'Dr. J. E. Bruce, a veterinarian, examined some of plaintiffs' cattle on March 11, 1958, and found six or seven cattle to have symptoms which he described as very rapid loss of weight, a peculiar uncoordinated gait, particularly in the rear limbs, and a profuse discolored diarrhea with a very foul smell, although each of said cows was found to have normal temperature. He found no dead cattle on that visit, however. On March 18, 1958, Dr. Bruce visited the pasture again and found one dead cow on which he performed a post mortem examination. He took specimens from the dead animal, from the feed which was being given to the cattle and from the area, which specimens were sent to a laboratory for analysis. Dr. Bruce, however, made no examination of these specimens himself, and the results of the laboratory tests were...