Dowell, Inc. v. Jowers

• Decision Date: 01 June 1948
• Docket Number: No. 12020.,12020.
• Citation: 166 F.2d 214,2 ALR 2d 442
• Parties: DOWELL, Inc. v. JOWERS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

2 ALR 2d 442, 166 F.2d 214 (1948)

DOWELL, Inc. v. JOWERS et al.

No. 12020.

Circuit Court of Appeals, Fifth Circuit.

February 18, 1948.

Rehearing Denied March 18, 1948.

Writ of Certiorari Denied June 1, 1948.

Val Irion, Harry A. Johnson, Jr., Max Maurice Morelock and Malcolm E. Lafargue, all of Shreveport, La., for appellant.

Harry V. Booth, of Shreveport, La., and Truett L. Scarborough, of Ruston, La., for appellees.

Before HUTCHESON, McCORD, and LEE, Circuit judges.

Writ of Certiorari Denied June 1, 1948. See 68 S.Ct. 1346.

LEE, Circuit Judge.

Appellees, plaintiffs below, are the widow and three minor children of Frank Jowers who was employed as a driller by the Penrod Drilling Company and who was killed on October 29, 1945, by an explosion which occurred during the bringing in of a gas well in Bienville Parish, Louisiana. Appellant, Dowell, Incorporated, defendant below,¹ is a corporation organized under the laws of the State of Michigan and duly authorized to do business in Louisiana. Jowers was in charge of one of the Penrod drilling crews which had drilled the well in question. When the well was completed, it was found necessary to acidize it, and Penrod employed Dowell to do the job. Jowers and his crew prepared the well for acidizing, after which the Dowell crew did the actual work of acidizing. When that work had been completed, Jowers and his crew commenced to bring in the well, and the well exploded,² killing Jowers. Mrs. Jowers, for herself and as natural tutrix of her children, brought suit for damages in the sum of $220,871.60 for wrongful death, in the Louisiana Court for the Second Judicial District, Bienville Parish. Upon petition of the defendant, the suit was removed on the ground of diversity of citizenship to the United States District Court for the Western District of Louisiana. The complaint alleged that during the acidizing process a choke was negligently removed from the flow line of the well by some member or members of the Dowell acidizing crew without notification to Penrod or Penrod's crew, and that as a result of that removal the well "went wild" when Jowers was bringing it in, exploded, and caused the death of Jowers. After all of the evidence was in, appellant filed a motion for a directed verdict, which motion was denied, and the jury returned a verdict in the sum of $62,000 for the plaintiffs and the Hartford Accident & Indemnity Co., the insurer of Penrod, which, having paid compensation, had intervened as co-plaintiff in the action. Appellant appeals from the judgment entered upon the verdict and from an order denying its motion for judgment non obstante veredicto.

Appellant makes nine specifications of error, which, for convenience' sake, we shall condense to three.

(1) Appellant contends that the court erred in failing to grant its motion for a directed verdict or its motion to set aside the verdict.

(2) Appellant further contends that the court erred in accepting as evidence of a fact, and in submitting to the jury the testimony of one H. T. Poole; without Poole's testimony, which was offered only in rebuttal to impeach one of appellees' witnesses, there was no evidence whatever to justify submission of the case to the jury.

(3) Appellant assigns as error also certain statements made by the trial judge in his charge to the jury.

We take these assignments of error seriatim. Appellees insist that, since appellant gave no reasons for its motion for a directed verdict, "it is as if no motion was filed," and the defendant went to the jury without challenging the sufficiency of the evidence, so that no error can be attributed to the trial court on the score of overruling the motion. The record shows that the motion as filed did not "state the specific grounds therefor." Federal Rules of Civil Procedure, rule 50(a), 28 U.S.C.A. following section 723c. But incorporated in the record is the oral colloquy between the court and appellant's counsel. The court asked counsel why he thought a verdict should be directed in this case, and counsel's reply shows quite clearly that in his view the evidence had not proved the allegation of negligence in the complaint. We think that, in the circumstances, there was a sufficient compliance with the procedural rule, and that in the light of the conditions under which the case was tried it was reversible error to deny appellant's motions for directed verdict and for judgment non obstante veredicto. We think, however, that instead of a reversal with directions to enter judgment for defendant, given the circumstances, the reversal should be for trial anew.

Because the case is to be retried, some analysis of the evidence seems desirable in order thoroughly to clarify our position with respect to the second and third assignments of error. To describe clearly the process of acidizing and bringing in an oil well would unduly lengthen this opinion; so also would a detailed account of the particular operation in the case before us and its unfortunate consequences. Suffice it to say that at a point in the flow line leading from the well into a slush pit, a flow bean or choke is inserted which is both a safety device to control the flow of gas from the well in order to help prevent possible explosion of the kind that happened here, and a device to control pressure in the well during the process of acidizing. The evidence is clear that before or during³ acidation of the well in question the deceased and his helpers were ordered by Thomas, Penrod's tool-pusher who was in charge generally of all the operations, to put in a choke for the purpose of building up pressure in the well, and that they did so. Every member of the Dowell crew and all but one or possibly two of the Penrod crew who had been present at the well during the operations on that day testified at the trial. Not one had removed the choke or seen anyone else remove it. All that the evidence shows is that the next day one of the Penrod employees found that part of the flow line in which the choke should have been, and there was no choke in it.

The evidence is clear that while a choke in the flow line may in some cases retard the process of acidizing a well, in this type of well a choke was essential if sufficient pressure to do the job was to be maintained. Appellees' insistence that the function of this choke in this case was solely that of a safety device and that the choke was a hindrance to appellant in acidizing cannot be sustained, but it is just upon this point that confusion arises. The testimony of all the witnesses is to the effect that if, when a well is ready for acidizing there is mud and slush in the well, the presence of a choke in the flow line will hinder the flow of mud and slush from the well and so retard operations; but that this well was full of water and that in such a case a choke is necessary in order to retard the flow of water as it is displaced by the acid, and so build up and maintain the proper pressure in the well. But one witness, E. F. Hall, an employee of appellant, was called as on cross-examination by appellees and was confronted by appellees' counsel with a statement⁴ he had made after the accident to one Swift, an agent of Penrod's insurer. The statement as a whole was not offered in evidence, but certain sentences from it were quoted out of context by appellees' counsel and so read into the record. Upon questioning, Hall admitted that he had made the statement. It seems to us probable that the quoted sentences deal with Hall's description of the process of acidizing wells in general, not of the process of acidizing the particular well in this case. Hall's testimony read as a whole leaves no doubt that as to this particular well a choke in the flow line was essential to the maintenance of adequate pressure, and so he may be said to join the other witnesses in their unanimous testimony of necessity. But there remains that partial statement read before the jury, and made nearer to the time of the accident. The jury may have been impressed by this, and although we cannot say there was a total absence of evidence tending to show a reason for appellant to have removed the choke, we think there was not sufficient evidence on the point to go to the jury.

Appellees refer us to the record for testimony⁵ that there was mud and slush in the well, the presence of which would give a reason for removal of the choke. A reading of this testimony shows that mud and slush were mentioned only by counsel in his questions and always coupled with another word or phrase, "and such" or "fluids." The witness' answers, "yes," were undoubtedly in assent to "and such" or "fluids," since he says unequivocally that "the entire well was filled with water," a statement corroborated by other witnesses later in the trial. Appellees' reliance upon this testimony is incomprehensible. It is against, not for, their contention.

Another witness, J. H. Poole, testified for appellees on this point. Upon direct examination he said that after the acid had been pumped into the well, the Dowell men were in process of taking down their equipment when pressure in the well became so great as to push a cable out of the tubing faster than the men could coil it. At that time, he testified, the flow of the well was reversed, and then there would have been a reason to remove the choke. But on cross-examination immediately after this statement, Poole testified that the flow could have been reversed without removal of the choke. Poole had heard the order given by Thomas to Jowers to insert the choke, but he had not seen Jowers do it; nor had he seen anyone remove the choke. His testimony as to possible reasons for removal is on its face entirely theoretical.

Apart from these bits of testimony, there is no probative evidence to show that removal of the choke could or would have served a useful purpose during acidation, and certainly there is none in the entire record to show that any of the...