Cities Service Oil Co. v. Merritt

• Decision Date: 08 July 1958
• Docket Number: No. 37143,37143
• Citation: 332 P.2d 677
• Parties: CITIES SERVICE OIL COMPANY, a corporation; Phillips Petroleum Company, a corporation; and Earl E. Ives, Plaintiffs in Error, v. Pauline R. MERRITT, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 677

332 P.2d 677

1958 OK 185

CITIES SERVICE OIL COMPANY, a corporation; Phillips Petroleum Company, a corporation; and Earl E Ives, Plaintiffs in Error, v. Pauline R. MERRITT, Defendant in Error.

No. 37143.

Supreme Court of Oklahoma.

July 8, 1958.

Rehearing Denied Dec. 2, 1958.

Syllabus by the Court

1. This court will review a verdict founded upon conflicting evidence only for the purpose of determining whether or not it is supported by competent evidence and is not contrary to law and not for the purpose of determining the weight of the evidence; and evidence reasonably tending to prove the essential facts in the case, either directly or indirectly or by permissible inferences, is sufficient to sustain the verdict and judgment based thereon.

2. Permitting jury to view property which is the subject of the action is within the discretion of the trial judge, whose ruling will not be a cause for reversal in the absence of a showing of an abuse of discretion.

3. Where the separate and independent acts of several combine to produce directly a single injury, though concern of action is missing, such parties are jointly and severally liable for the result even though the act of each alone might not have caused the injury.

4. Where the facts show that a lawful business is being conducted in such manner as to constitute a private nuisance causing substantial injury to property, the aggrieved party may recover compensation for the injury sustained.

5. A party on appeal in the Supreme Court will not be permitted to secure a reversal of a judgment upon error which he has invited or acquiesced in, or assume a position inconsistent with that taken in the trial court.

6. Where an examination of the instructions given and refused reveals that the court's instructions as a whole fairly and justly presented the issues to the jury, and where there are no fundamental errors substantially affecting the rights of defendants, a judgment will not be reversed because of some objectionable instruction.

7. The basis of liability for injury or damages to property by pollution of subterraneous waters, from oil, gas, salt water or like substances, in oil wells must be either negligence or nuisance.

8. Nuisance and negligence are distinct torts. As a general rule, liability for nuisance does not depend upon the question of negligence, and may exist although there was no negligence. Hence, negligence is not an essential or material element of a cause of action for nuisance and need not be proved. However, negligence, if any, may usually be proved in nuisance cases, even though it is not essential to the right of recovery.

9. Where an instruction given is a substantial statement of the law, and where the defendant did not submit any requested instruction to the trial court on the proposition, nor in any way call the court's attention to any claimed deficiency in the instruction at the trial of the case, defendant is precluded from urging reversal by reason of the inclusion of such instruction.

10. Where injury to real estate from salt water is permanent, the measure of damages is the difference between the value just prior and just after the injury.

11. Where a verdict and judgment based thereon is within the limits asked for and is less than the proven damage, such judgment will not be reversed because of excessiveness.

12. Exemplary damages are allowable by way of punishing defendant for malicious or wilful and wanton invasion of plaintiff's rights, purpose being to restrain him and deter others from commission of like wrongs (23 O.S.1951, § 9); and jury's allowance of exemplary damages will not be held excessive unless it appears to be grossly so or result of passion, prejudice or improper sympathy. Record examined and held, $5,000 punitive damage in this case is excessive.

13. Record examined, and verdict and judgment as modified found to be reasonably sustained by the evidence and not contrary to law.

Appeal from the District Court of Oklahoma County; Wm. L. Fogg, Judge.

Action for damages for pollution of subterraneous water. Judgment for plaintiff and defendants appeal. Affirmed as to actual damages, modified as to punitive damages, and as modified, affirmed on condition of remittitur.

Johnson, Tomerlin, Cotter & High, Oklahoma City, for plaintiffs in error.

John G, Hervey, Ralph J. May, Oklahoma City, for defendant in error.

JOHNSON, Justice.

This action was brought by Pauline R. Merritt, plaintiff, against defendants, Cities Service Oil Company, a corporation; Earl E. Ives; Phillips Petroleum Company, a corporation; and Mercury Oil Refining Co., wherein she sought actual and punitive damages as a result of defendants alleged salt water pollution of subterranean water-producing formations underlying her land, which rendered the water in her water wells permanently unpotable.

Demurrer was sustained as to Mercury Co., and it is not involved in this appeal.

Upon trial to a jury, a verdict and judgment based thereon was rendered in favor of plaintiff against all of the defendants, Cities Service Oil Company, Earl E. Ives and Phillips Petroleum Company, for actual damages in the sum of $30,448.03; and punitive damages in the sum of $4,500 and $500 were assessed against Cities Service and Phillips Petroleum Co., respectively.

Defendants' motion for a new trial was overruled, resulting in this appeal.

Defendants interpose 86 separate specifications of error which they present and argue under six propositions, to-wit:

'I. The court erred in refusing to permit the jury to view the premises.

'II. Plaintiff failed to sustain the burden of separating the damages resulting from permissive and non-permissive pollution, which precludes recovery against the defendant, Phillips Petroleum Company.

'III. The defendants, Cities Service Oil Company and Earl E. Ives, are not liable to the plaintiff for salt water damage occurring on the oil and gas lease of the defendant, Cities Service Oil Company, covering plaintiff's land, unless it was caused by negligence in the operations, and such principle is not abrogated by the Oklahoma statute relative to nuisances.

'IV. The court erred in failing to submit to the jury the issue as to the character of damage involved, and failed to properly instruct the jury on the measure of damages.

'V. The evidence is too conjectural to sustain the grossly excessive award of actual damages.

'VI. The verdict awarding punitive damages is not supported by the evidence.'

We will review a verdict founded upon conflicting evidence only for the purpose of determining whether it is supported by competent evidence and whether it is contrary to law and not for the purpose of determining the weight of the evidence, and whether the evidence reasonably tending to prove the essential facts in a case, either directly or indirectly, or by permissible inferences, is sufficient to sustain a verdict and judgment based thereon. Cities Service Gas Co. v. Eggers, 1940, 186 Okl. 466, 98 P.2d 1114, 126 A.L.R. 1278 and cited cases.

Defendants' first contention that the court erred in refusing defendants' request to have the jury view the premises is without merit. The evidence and circumstances of the case do not reveal an abuse of discretion. Under 12 O.S.1951 § 579, permitting a jury to view property which is the subject of the action is within the discretion of the trial judge, whose ruling will not be a cause for reversal in the absence of a showing of an abuse of discretion. See Phillips Petroleum Co. v. Malone, 179 Okl. 449, 66 P.2d 5, and 53 Am.Jur., Trial, Secs. 441-442. Also Denver Producing & Refining Co. v. Meeker, 199 Okl. 588, 188 P.2d 858, and cited cases.

Defendants' second proposition is that plaintiff failed to sustain the burden of separating the damages resulting from permissive and non-permissive pollution, which precludes recovery against the defendant Phillips Petroleum Company. However, plaintiff contends that any failure of the plaintiff to make a separation of so-called permissive and non-permissive pollution attributable to operations of defendants on plaintiff's land does not constitute reversible error.

The record discloses that the defendant Cities Service Oil Company and its predecessor have owned and operated the oil and gas lease covering the entire 160 acres which includes plaintiff's land. Salt water produced on this leased land contributed to the pollution of plaintiff's water wells. It is argued that some of the damage was caused by salt water from the leased premises flowing over and across that portion of the surface of the leased premises reasonably necessary to the development of the land for oil and gas purposes.

The above stated proposition is not urged in behalf of the defendants, Cities Service and Ives. However, as to the burden of separating damages, it is contended that the situation is different as to the defendant, Phillips Petroleum Company, as the pollution charged to it comes only from its Berg lease, through a tributary of the west branch of Crooked Oak Creek. Plaintiff's expert evidence was to the effect that the west branch of Crooked Oak Creek also contributed to the pollution of plaintiff's water wells. Therefore, under these circumstances, it is contended that the issue is squarely presented as to the amount of damages resulting from the reasonable and necessary operations under the oil and gas lease covering plaintiff's land; and any contribution to the pollution of plaintiff's water wells resulting from the reasonable and necessary operations under the oil and gas lease is not a violation of the statute, citing 52 O.S.1951 § 296, and Pure Oil Co. v. Chisholm, 181 Okl. 618, 75 P.2d 464. It is argued that such pollution is chargeable to plaintiff under the license of said oil and gas lease, and in such circumstances the burden is placed upon the plaintiff to separate such permissive pollution from the non-permissive pollution which she claims resulted...