Casey v. Phillips Pipeline Co.

• Decision Date: 06 September 1967
• Docket Number: No. 44783,44783
• Parties: Frank J. CASEY and Freda J. Casey, Appellants, v. PHILLIPS PIPELINE COMPANY and Sheehan Pipeline Company, Appellees.
• Court: Kansas Supreme Court

Page 518

431 P.2d 518

199 Kan. 538

Frank J. CASEY and Freda J. Casey, Appellants, v. PHILLIPS PIPELINE COMPANY and Sheehan Pipeline Company, Appellees.

No. 44783.

Supreme Court of Kansas.

Sept. 6, 1967.

Syllabus by the Court

1. K.S.A. 60-456 requires that an expert witness base his testimony upon facts personally perceived by or known to him or made known to him at the hearing. 'Perceived' means knowledge acquired through one's own senses (K.S.A. 60-459(c)), and 'made known' refers to facts put in evidence.

2. Pursuant to K.S.A. 60-419 and 60-456, the test of competency of an expert witness is whether he discloses sufficient knowledge to entitle his opinion to go to the jury. Where an expert witness has disclosed a sufficient knowledge of the subject to entitle his opinion to go to the jury the question of degree of his knowledge goes more to the weight of the evidence than to admissibility.

3. An expert witness may give his opinion even though it is founded not upon personal observation but upon knowledge gained from books and treatises or publications not admitted into evidence and such use of the treatises does not constitute a hearsay use, and a duly qualified witness may be permitted to base his testimony as to the value of a commodity in part, at least, upon commercial circulars, market reports, or trade journal quotations.

4. An expert's reference to market research data and quotations in trade journals as a source of knowledge does not render his opinion inadmissible under an exclusionary rule and the market data and journals do not have to be admitted into evidence before his testimony is admissible.

5. An expert witness need not have acquired his special knowledge or experience, which he is to present to the jury, at a time before the date of the occurrence of the event which is in issue.

6. Circumstantial evidence in law is evidence that tends to prove a fact in issue by proving other events or circumstances which, according to common experience of mankind, are usually or always attended by the fact in issue, and therefore affords a basis for a reasonable inference by the jury or court of the occurrence of the fact in issue. Circumstantial evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion.

7. K.S.A. 60-409(b)(3) provides that judicial notice may be taken without request by a party, of facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. Judicial notice takes the place of proof and is of equal force.

8. The supreme court takes judicial notice that gasoline has a specific gravity less than water and when the two become mixed, gasoline will 'float' on top of water; further, that gasoline is a highly volatile liquid hydrocarbon mixture containing antioxidants harmful to the natural growth of vegetation.

9. A plaintiff should be given the benefit of every inference that can reasonably be drawn from the pleadings and evidence, and if on the facts the relief sought could be granted, a case should not be involuntarily dismissed. (K.S.A. 60-241(b).)

10. The record in an action to recover damages for the destruction of a crop of zoysia grass, loss of marine life in the plaintiffs' lake, the filling in of the lake with dirt, and loss of alfalfa and blue grass in the defendants' pipeline right of way, is examined, and it is held: The district court erred in sustaining the defendants' motion to dismiss the plaintiffs' claim for damages pursuant to K.S.A. 60-241(b); in entering judgment against each defendant for nominal damages, and in overruling the plaintiffs' motion for a new trial.

Bernis G. Terry, Olathe, argued the cause and was on the brief for appellants.

John J. Alder, Kansas City, argued the cause, and Harley V. Haskin, Olathe, was with him on the brief, for appellees.

FATZER, Justice.

This was an action for damages commenced by the plaintiff-appellants, Frank J. Casey, and Freda J. Casey, his wife, against the Phillips Pipeline Company and the Sheehan Pipeline Company, for the destruction of a crop of zoysia grass, the loss of marine life in the plaintiffs' pond or small lake, the filling of the lake, and loss of alfalfa and bluegrass in Phillips Pipeline right of way. The plaintiffs have appealed from orders of the district court sustaining separate motions to dismiss their cause of action.

The plaintiffs are the owners of a 25-acre farm on Pflumm Road, Lenexa, Kansas. The farm had two ponds, one being slightly larger than the other and referred to by the plaintiffs as the 'lake.' This larger pond (hereafter referred to as the lake) was approximately sixteen feet deep at its deepest point (at the northeast end where the dam and spillway were located) and was about a half acre in surface. The lake extended to the west and southwest and about twenty feet of the southwest end of the lake extended into a right of way easement owned by the defendant, Phillips Pipeline Company. The right of way contained several pipelines owned by Phillips, and crossed plaintiffs' property in almost a true north-south direction. Three of the lines were exposed in the water which was two or three feet deep beneath them and extended back west about twenty feet.

The lake was spring fed and was the source of water for the plaintiffs' bathrooms.

On August 28, 1963, Casey left his home in Johnson County at 2:00 a. m. with a truck and trailer and drove to Link's Nursery at St. Louis, Missouri, to purchase Meyer zoysia stolons. He arrived at the nursery at 6:00 a.m. The nursery had started cutting the zoysia sod at 5:00 a.m. and the sod was ground into stolons and loaded in the truck and trailer. Casey drove home, arriving late in the afternoon. He had a crew of men waiting to plant the stolons on a four-acre tract south of his house. The actual planting took about two hours. The stolons were put in a manure spreader and spread on the ground, and were pressed into the soil with a cultipacker which was pulled crossways and longways over the field.

Casey had carefully prepared the four-acre tract for planting the zoysia stolons; it was in excellent condition. The soil had been plowed, and was disced and harrowed weekly for two months before the stolons were planted; it was level and all of the air pockets had been worked out and everything had been kept off the area.

Casey chose August 28, to plant the stolons, and commenced watering them with a sprinkler system from the lake. He had the water system all set up and used a gasoline engine and pump to get the water from the lake. A plastic pipe was used for the intake, which he placed on a ten-foot board to hold the pipe in the water so it would not suck air. It was placed on the board so that it 'pulled water off the top of the lake.' Casey's wife and son kept gasoline in the engine and the pump ran around the clock.

As customary for zoysia grass, it immediately started to turn brown, then after about five days the grass started to green up 'all over the area.'

During the latter part of August, Phillips 'hired' the Sheehan Pipeline Construction Company to construct another pipeline and do repair work on one of the high pressure gasoline lines in the right of way crossing the plaintiffs' property. Sheehan began work on the plaintiffs' premises on August 28, by making a roadway across the southwest portion of the lake where the pipelines were exposed. It filled in the two to three feet of water with dirt and then put another two feet of dirt on top of the half exposed pipes for a roadway across the lake. The roadway was twelve feet wide with strength enough to allow tractors, trucks and bulldozers to cross over it. There was evidence that when Sheehan finished the construction and repair work, the dirt used to make the roadway was left there and it washed into the lake causing the depth of water about fifteen feet from the dam to be probably ten inches to a foot deep. Prior to that time, the water was about sixteen feet deep at the spillway.

By September 4, the grass was greened up all over the field and Casey was confident he was going to have a crop. At noon on that date he left for Oklahoma to play golf. He instructed his wife to continue to water the grass until he returned.

At about 3:30 p.m. on September 4, a high pressure gasoline line in the right of way was punctured by Sheehan, allowing the gasoline to escape, which formed a white could above the lake area. Mrs. Casey was home at that time and could see the white cloud over the lake area and attempted to go down to the lake but was motioned back by one of the pipeline workers who was standing in the pasture. Another of Sheehan's workmen came up to the house and asked that she turn off any burners which she might have on. Mrs. Casey turned off her stove and hot-water tank. He told her to turn them off because they had a gas line break and the gasoline was very potent. At about 9:00 o'clock that evening, the workman came back and told her that everything had been taken care of and he relit the hot-water tank for her.

When Casey returned home from his golf trip some five or six days later, he could not get a good look at the grass because it was raining, but when he was able to look it over, he noticed the grass had started to turn brown again. He continued to water it, but the grass never regained its green color and no crop of zoysia grass was even taken off the field. A photograph in the record showed dead marine life and oil and gasoline streaks along the edge of the lake.

The plaintiffs commenced this action and alleged Phillips 'hired' Sheehan 'to do certain repair and replacement work to a pipeline over the property of the plaintiffs' on an easement owned by Phillips and filed of record in Johnson County. This allegation was admitted by both defendants. The petition then alleged that both defendants, in carrying...