Darby Petroleum Corp. v. Rogers
| Decision Date | 05 April 1938 |
| Docket Number | Case Number: 27698 |
| Citation | 1938 OK 235,82 P.2d 839,183 Okla. 415 |
| Parties | DARBY PETROLEUM CORPORATION et al. v. ROGERS et al |
| Court | Oklahoma Supreme Court |
¶0 1.WATERS AND WATER COURSES--Action for Injuries to Cattle From Drinking Polluted Water--Evidence of Pollution by Turning Salt Water Into Creek.
Evidence that salt water was being turned directly into creek within a week after cattle were injured by drinking from the creek, where there was other evidence strongly indicating that such condition had existed prior thereto, was admissible, and inspection showing such condition at that time was not too remote from date of injury.
2.SAME--Defendant's Requested Instruction on Issue of Whether Abortions of Calves Were Caused by Drinking Salt Water or by Bang's Disease Held Properly Refused.
Where there was an issue as to whether abortions of calves were caused by drinking salt water, or by Bang's disease, trial judge correctly refused requested instruction that jury must find for defendants on all issues if cattle had Bang's disease, the evidence having shown that the only effect of that disease was to cause abortions.
3.SAME--Permitting Recovery for Loss of Calves in Addition to Depreciation in Cattle Held not Allowance of Double Recovery Though Suckling Calves Had no Market Value.
In action where herd of cattle were shown to have been permanently injured by drinking polluted water, and, in addition thereto, aborted 102 calves, and it was shown that though suckling calves had no market value, they did have a certain named value to plaintiffs engaged in cattle business as constituting their crop, permitting consideration of damages for aborted calves in connection with injury to cows.
Appeal from District Court, Hughes County; H. H. Edwards, Judge.
Action by W. G. Rogers and others against the Darby Petroleum Corporation and others for injuries to cattle from drinking polluted water. Judgment for plaintiffs, and defendants appeal. Affirmed in part, reversed in part and remanded.
Giles A. Penick, Jr., for plaintiff in error Berry Petroleum Company.
I. L. Lockewitz and R. J. Roberts, for plaintiff in error Mid-Continent Petroleum Corporation of Kansas.
Anglin & Stevenson and Vernon Roberts, for plaintiffs in error Darby Petroleum Corporation, H. F. Wilcox Oil & Gas Company, Houston Oil Company of Texas, Stanolind Oil & Gas Company, and Shaffer Oil & Refining Company.
Warren & Warren, for plaintiff in error C. L. McMahon.
Orr & Woodford, for defendants in error.
¶1 Plaintiffs recovered a verdict and judgment against each of the eight defendants, covering injury to cattle caused by drinking creek water which had been polluted by the defendants in the operation of their nine oil and gas leases, and the defendants appeal.
¶2 Plaintiffs were lessees and operators of a ranch of about 2,000 acres, which ranch contained four separate pastures. The north pasture was traversed by Little Wewoka creek, which meandered through it for over a mile. This creek was the only permanent stock water in that pasture. It did not pass through the other three pastures. It was in this pasture that the plaintiffs' cattle were injured.
¶3 In the spring of 1933 the plaintiffs purchased 375 good grade Whitefaced Hereford cattle in good condition, and placed them in the east and south pastures of the ranch, where the cattle thrived, producing during that summer a 90 per cent. crop of calves with no abortions in the herd. In November of. 1933, after weaning the calves, the remainder of the herd was moved to the north or bottom pasture for the winter. Shortly thereafter they began. to abort calves, which were born dead. The cattle began suffering from intestinal disorders and began to lose weight and become thin. Plaintiffs did not know the cause of the trouble. Different sorts of feed were tried, and the cattle in that pasture were heavily fed. After about 60 days they were moved from that pasture and put in the feed lot, where the heavy feeding was continued and they were given fresh spring water. Nevertheless they continued to lose weight and became further emaciated. They also continued to abort their calves, so that until the fall of 1934, 102 calves were born dead.
¶4 In the fall of 1934, the plaintiffs, not yet having discovered the pollution of the creek, placed upward of 100 calves and yearlings in the north pasture. They began to lose weight, although feed was abundant. They were moved from that pasture in about 30 days, having lost both in weight and in quality, and six of them died. The total deaths, counting both years, were 13 cows, one bull and six calves, in addition to the 102 calves born dead. The largest item of damage, however, was the depreciation to the entire herd, caused by permanent loss of weight and depreciation in quality.
¶5 Up the creek some distance the defendants were operating their oil and gas leases. All leases in that oil field, except the nine leases of defendants, drained north into the North Canadian river. The nine leases of defendants drained south into the creek which traversed the land in question, and are the only leases draining into that creek. It was shown by undisputed evidence that with the exception of one defendant, hereinafter discussed, salt water in considerable quantities was being run or piped directly into the creek by each of the defendants.
¶6 The defendants assert that the witness who testified that they were permitting salt water to escape into the creek made his inspection, wherein he observed that fact, more than a year after the injuries were sustained. They say that this was too remote in point of time and that the judgment should be reversed for that reason, citing Thurman Oil Co. v. Carman, 179 Okla. 388, 65 P.2d 963. The record does not support the contention of defendants as to the evidence in this connection. It reveals that the examination was made within a week or ten days of the date upon which the cattle were last removed from the pasture. Furthermore, as stated above, the leases of the defendants were the only leases which for some years had drained into that creek, and evidence was adduced showing that the water had been of high salt content for the past several years. Also, the water immediately above the leases was not polluted. Additionally, evidence was received that the pipes in which the salt water was being emptied into the creek were corroded half their thickness, indicating that for a considerable while the same condition had existed. The vegetation where the salt water had drained was killed and barren and the soil was dead. The trees were dead. Other facts were adduced indicating that the same condition had existed for a long while. We therefore are of the opinion that the principle that presumptions do not run backward is of no benefit to the defendants in the instant case, for not only was the inspection made within a week or ten days of the last date of injury, but the physical facts circumstantially indicated that the condition found on that date had existed for several years prior thereto. Furthermore, numerous witnesses testified as to the salty condition of the water at dates interspersed throughout the several years prior to the inspection in question. No witness was produced by any of the defendants, except the one hereinafter mentioned, denying that they had actually polluted the water.
¶7 Defendants also complain that the court erred in failing to submit to the jury their theory of the case. This contention is made in connection with their complaint that the trial judge refused to give the jury the following instruction, requested by the defendants:
"You are instructed that if you find and believe from the evidence that the cattle involved herein were suffering from Bang's disease or any other disease not caused by the drinking of salt water, if any, permitted to escape by the defendants, your verdict must be for the defendants."
¶8 The trial judge correctly refused to give that instruction. The evidence produced by defendants revealed that some of the cattle were suffering from Bang's disease, but it was shown that Bang's disease does not cause loss of weight, death, or depreciation in cattle, but that its only effect is to cause the abortion of calves. The requested instruction was too broad in its scope. According to the evidence, such disease could not have caused any of the injuries which were actually suffered, other than the loss of calves, yet the instruction would have required a finding for the defendants on all of the issues as hereinafter discussed. The court did properly instruct the jury that it was the theory of the defendants that Bang's disease was the cause of the loss of calves by premature birth, and that if the jury believed that the loss of said calves by premature birth was occasioned...
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