Carter Oil Co. v. Indep. Torpedo Co.
| Decision Date | 12 November 1924 |
| Docket Number | Case Number: 14760 |
| Citation | 107 Okla. 209,1924 OK 1003,232 P. 419 |
| Parties | CARTER OIL CO. v. INDEPENDENT TORPEDO CO. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence--Res Ipsa Loquitur--When Rule Inapplicable.
The rule of res ipsa loquitur is a rule of evidence only. It takes more than the mere happening of an accident to set the rule in operation. It must be shown that the occurrence was of such character as that, in the light of ordinary experience, it is without explanation except on the theory of negligence. The thing causing the accident must have been under the control of the defendant at the time of the accident. Where there are several instrumentalities used in doing the thing out of which the accident arose, some of which were under the control of defendant and others of which were under the control of the complaining party, the doctrine of res ipsa loquitur will not apply, where the accident may reasonably have occurred by reason of defects in the instrumentalities under plaintiff's control.
2. Negligence--Proximate Cause--Burden of Proof.
Neither conjecture nor speculation forms a reasonable basis for arriving at a verdict in a case where recovery is sought upon the alleged negligence of the defendant, but there must be evidence reasonably tending to show that defendant was guilty of some one of the negligent acts charged and that such negligence was the proximate cause of the injury.
3. Trial--Demurrer to Evidence--Effect.
Where, in a suit at law, defendant at the close of plaintiff's evidence, demurs to the evidence, he thereby admits every fact which the evidence tends to prove and all inferences and conclusions that may be reasonably or logically drawn from such evidence. If the evidence be conflicting upon any particular point, the court in making its conclusion will withdraw from consideration that evidence upon such point which is unfavorable to plaintiff.
James A. Veasey, C. M. Oakes, Walter Davidson, and Moss & Owen, for plaintiff in error.
C. C. Spillers, for defendant in error. George B. Schwabe, amicus curiae.
¶1 The Carter Oil Company began this action in the district court of Tulsa county, Okla., against the Independent Torpedo Company, to recover damages alleged to have been sustained by plaintiff in error by reason of the negligent shooting of an oil well. The parties will be referred to herein as they appeared in the trial court. In the petition it is alleged that plaintiff had drilled its well to a depth of 2,124 feet, and that when the well had reached this depth it employed the defendant to shoot it by means of a shell or torpedo loaded with nitroglycerine. The defendant accepted this employment and sent its agent to do this work. It became necessary to lower two shells or torpedoes to the bottom of plaintiff's well and there explode the same. The defendant lowered one shell to the bottom of the well and put the same in place. It then began to lower the second shot, but when said second shot had reached a depth of approximately 400 feet, the same exploded causing the practical destruction of the well, together with part of the casing and doing certain damage to the rig of the plaintiff used in the drilling of the well.
¶2 In the petition it is alleged that nitroglycerine is a highly dangerous explosive and requires in its manufacture and in its handling a high degree of care and skill; that it will not explode spontaneously or prematurely when properly manufactured and handled in a skillful and careful manner. The sole allegations of negligence in the petition are as follows:
"That the said defendant, in connection with the manufacturing of such explosive, and in the shooting of the said well, as aforesaid, failed to use the proper degree of care and skill required in the manufacture and handling of the said explosive; and that the said premature explosion, as aforesaid, was due solely to such carelessness and negligence of the said defendant and of its servants, as aforesaid, and would not have occurred except for such negligence and carelessness, nor if the said explosive had been properly manufactured and handled in a careful and skillful manner."
¶3 It is alleged that by reason of the facts stated, the defendant has made a breach of its contract to shoot the plaintiff's well., at the proper point in the oil sand and in a skillful and proper manner, and that plaintiff has been damaged thereby in the sum stated. Defendant demurred to this petition upon the ground that it failed to state facts sufficient to constitute a cause of action against the defendant, which demurrer was by the court overruled. The defendant then filed its answer, consisting, first, of a general denial; and second, of an allegation that prior to the time of shooting this well it had notified the plaintiff that all wells were shot by the defendant at the owner's risk, and that plaintiff with this notice employed the defendant to shoot said well, and defendant pleads that under such state of facts the risk of explosion was assumed by the plaintiff. Plaintiff filed its reply to this answer, denying every allegation of new matter. Upon these pleadings, the cause went to trial before a jury. At the close of the plaintiff's evidence, defendant interposed its demurrer to the evidence, and this demurrer was by the court sustained. The petition of plaintiff was dismissed and judgment entered in favor of the defendant; due exceptions were saved by plaintiff, motion for new trial was filed and overruled, and the cause is now here for review upon the action of the trial court in sustaining the demurrer to the plaintiff's evidence. It is evident that the plaintiff framed its petition upon the theory of the application of the doctrine of res ipsa loquitur to the facts here. It is well known that nitroglycerine, which is used in the shooting of oil wells, is a highly explosive substance and that a high degree of care is required in its handling. If there is a failure on the part of the one using this substance to use a degree of care commensurate with the danger and the failure to use such care proximately causes damage to another, the party so causing such damage is liable to the other so injured. In the case before us, and in other cases of like character, the difficulty is found in determining the cause of the explosion when it occurs prematurely as in this case. Plaintiff evidently labored under this difficulty in preparing his petition and appears to have relied largely upon the theory that the fact that the defendant was using a dangerous substance and that the appliances used to lower the substance into the well were wholly within the control of the defendant, would enable it to invoke the doctrine of res ipsa loquitur, thereby placing the burden upon the defendant to so explain the cause of the explosion as that it would not appear to be due to the negligence of the defendant. But this doctrine is applied only where the instrumentalities out of the use of which the accident occurred are wholly within the control of the party charged with negligence. In this case it is true that the shell or torpedo was the instrumentality of the defendant and that the defendant had absolute control over the handling of the same. The nitroglycerine was in the exclusive charge of the defendant and the apparatus for lowering the shell filled with nitroglycerine was also in defendant's charge and owned by it. The plaintiff had prepared and furnished the receptacle into and through which this shell or torpedo should be lowered. The well partly cased and partly not cased became an integral part of the entire apparatus necessary to accomplish the purpose of the parties and when the plaintiff furnishes a part of the apparatus and the defendant furnishes the remainder, the doctrine invoked here cannot be made to apply, but it devolves upon the plaintiff to allege and prove negligence of the defendant, either as to its apparatus or the use thereof, and that such negligence was the proximate cause of the injury. The authorities, we think, are not at variance upon this proposition. It appears settled that in order to recover by reason of the rule of res ipsa loquitur, plaintiff must aver and prove such a state of facts as that the instrumentalities which have occasioned the injury were at the time under the control and management of the defendant; that the injury was caused by a failure of defendant's appliances to properly function, and that the cause of such failure is wholly in the power of defendant to prove, and beyond the power of plaintiff so to prove. In Thompson on Negligence, vol. 1. sec. 15, page 16, it is said:
¶4 And in vol. 8, section 7635, pages 1022-4, the author says:
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