Frazier v. Cities Service Oil Co.

• Decision Date: 07 April 1945
• Docket Number: 36319.
• Citation: 159 Kan. 655,157 P.2d 822
• Parties: FRAZIER v. CITIES SERVICE OIL CO. et al.
• Court: Kansas Supreme Court

157 P.2d 822

159 Kan. 655

FRAZIER v. CITIES SERVICE OIL CO. et al.

No. 36319.

Supreme Court of Kansas

April 7, 1945

Appeal from District Court, Butler County; George J. Benson, Judge.

Action by Frances Frazier against Cities Service Oil Company and others for personal injuries. Defendants' demurrers to plaintiff's petition were overruled, and defendants appeal.

Reversed.

SMITH J., dissenting

Syllabus by the Court.

1. A petition, parts of which have been subjected to defendants' motions to make definite and certain which have been resisted successfully by plaintiff, is thereafter subject to critical analysis and strict construction as to such parts when attacked by general demurrer.

2. For one to be negligent it is not necessary that he foresee injury in the precise form in which it in fact occurs, nor because the injury is greater than he anticipates.

3. As a general rule it is negligence as a matter of law for a motorist to operate his car on the highway when he cannot see by reason of smoke, fog, dust or atmospheric conditions, with the result he loses his sense of direction and drives off the highway and into a place of danger where he is injured.

4. The fact that a plaintiff may be guilty of negligence contributing to his injury does not preclude his recovery from nor avail a defendant who is guilty of wantonness in the circumstances of the cause.

5. To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. If the actor has reason to believe his act may injure another, and does it being indifferent to whether it does or not, he is guilty of wanton conduct.

6. The general doctrine of liability without fault as promulgated in Fletcher v. Rylands, L.R.I. Exch. 265, and as recognized in certain of our decisions noted in this opinion is not to be applied to determine the sufficiency of a petition for the recovery of damages for personal injuries alleged to have occurred by reason of the negligence of the defendants.

7. A petition in an action for damages for personal injuries examined, and held, (1) the trial court erred in not sustaining a part of defendants' motion to make the petition more definite and certain; (2) the allegations of the petition show plaintiff to have been guilty of negligence contributing to her injuries; (3) the allegations of the petition did not charge the defendants with wantonness; (4) the doctrine of liability without fault has no application to the facts pleaded; and (5) the trial, court erred in not sustaining defendants' demurrers to plaintiff's petition.

I. L Lockewitz, of Tulsa, Okl., and R. O. Mason, of Bartlesville, Okl. (P. K. Smith, of Wichita, K. M. Geddes, of El Dorado, T. J. Hanlon, of Independence, Edward H. Chandler and Ralph W. Garrett,

both of Tulsa, Okl., and A. M. Ebright and Hayes McCoy, both of Bartlesville, Okl., on the brief), for appellants.

J. B. McKay, of El Dorado, for appellee.

THIELE Justice.

This was an action for damages for personal injuries. The defendants' demurrers to plaintiff's petition were overruled and they appeal.

Omitting formal parts, as well as matters not of present concern, the petition alleged that the defendant Cities Service Oil Company, hereafter referred to as Cities Service, owned and operated an oil and gas lease on the West Half of the Northwest Quarter of a certain section, and that defendant Kiefer was its foreman, and that Sinclair Prairie Oil Company, hereafter referred to as Sinclair, owned and operated an oil and gas lease on the Northwest Quarter of the Southwest Quarter of the above-mentioned section, and that the defendant Powden was its foreman; that about 1919 the predecessor in title of Cities Service built on its lease a large plant called a dehydrator where it treated the oil from about seventy-five separate tracts containing about thirteen hundred fifty wells, to remove water, basic sediment and other waste, and from 1919 until a few years prior to the filing of this suit, several million barrels of oil were there treated and a vast volume of water, basic sediment and refuse was deposited in two large ponds on the Cities Service lease, and that the basic sediment and refuse were highly inflammable, a fact well known to all of the defendants; that the north banks of the two ponds were parallel to and a few feet south of a public highway which extends along the north side of the Cities Service lease, and the west bank of one of the ponds is near the west line of the lease, the highway mentioned being surfaced with 'black top' and being one of two main highways between El Dorado and Wichita. The eleventh paragraph of the petition recited:

'11. On November 11, 1943, at about 1:30 P.M., plaintiff and one M. Ruth Teter, a friend of plaintiff, started from El Dorado, Kansas, to Wichita, Kansas, on the highway above mentioned, in a Dodge automobile owned and operated by plaintiff. As plaintiff and said M. Ruth Teter approached said ponds from the east, they observed smoke which originated on the Sinclair Lease blowing across said public highway in the vicinity of said ponds. After plaintiff and said M. Ruth Teter first saw such smoke and before they had reached the place where such smoke was blowing across the highway, they met two or three motor vehicles coming from the west, which plaintiff thought and believed had driven through said smoke where it was blowing across said highway. As plaintiff and said M. Ruth Teter approached the place where said smoke was blowing across the highway, plaintiff did not see or observe any fire or flame in or about said ponds or said highway and plaintiff did not know that there was any fire or flame any closer than where such smoke was originating on said Sinclair Lease, and thought and believed that she could drive through such smoke in safety and accordingly plaintiff drove said automobile along the north side of said public highway into said smoke. After said automobile had proceeded into said smoke for a distance of several feet, the exact distance being to plaintiff unknown, the smoke dropped to the surface and grew more dense. By reason of the dense smoke, plaintiff lost her sense of direction and drove said automobile off the traveled portion of the highway on the south side thereof, whereupon plaintiff stopped and at said time a flash of flame from said east pond enveloped said automobile. Plaintiff and said M. Ruth Teter thereupon alighted from said automobile on opposite sides thereof and plaintiff succeeded in making her way out of said smoke and flame to the east side thereof, when plaintiff ascertained that said M. Ruth Teter had not made her way out. Plaintiff thereupon made two trips back into such smoke and flame in search of said M. Ruth Teter, and on the second trip found said M. Ruth Teter and assisted her out of such smoke and flame. In making her way out of said automobile as aforesaid, and in making such trips back in search of said M. Ruth Teter, plaintiff inhaled smoke and fire and suffered and sustained severe, painful and permanent burns and injuries as hereinafter set forth.'

The above was followed by an allegation the fire was communicated to the east pond on the Cities Service lease from a fire set out by defendant Powden in the course of his employment on the Sinclair lease on November 11, 1943, and at the time the fire was set out a strong wind was blowing from where the fire was started toward the pond; that the surface of the ground between the two places was covered with highly inflammable objects and substances consisting of dry weeds, grasses and other vegetation, tanks, derricks and structures, all of which were saturated to some extent with crude oil, and ponds and tanks containing basic sediment and crude oil, a more accurate description of which objects and substances plaintiff was unable to give. It was then charged that Powden and Sinclair were guilty of gross and wanton negligence in three respects. To avoid repetition of statement, the first is quoted in full:

'(a) In carelessly, negligently, recklessly, wilfully and with complete indifference to the natural and probable consequences, setting out said fire at said time and place, when they knew or should have known that such fire was likely to spread beyond the boundaries of said Sinclair Lease and in particular was likely to spread to said ponds.'

Using the same formula of language (b) referred to setting out a fire when a strong wind was blowing and (c) to the failure to take necessary precautions to prevent the fire from spreading beyond the Sinclair lease. It was then charged, using the same formula of language, that Cities Service was guilty of gross and wanton negligence in (a) operating and maintaining ponds along and adjacent to the highway, (b) permitting the ponds to be and remain full of oil, basic sediment and other dangerous substances, (c) permitting weeds, noxious vegetation and other inflammable substances to grow and accumulate along the banks of the ponds and adjacent thereto and (d) failing to construct fire guards along the ponds or to take precautions to prevent fire from adjacent premises. It was further charged that all defendants were guilty of gross and wanton negligence in failing to give warning to the traveling public and plaintiff in particular, of the danger of using the highway after the fire had spread to the east pond, or after it became apparent to the defendants the fire would so spread. It was also alleged that the joint and concurrent acts of negligence of the defendants solely and...