Good v. Whan

• Decision Date: 27 January 1959
• Docket Number: No. 37860,37860
• Citation: Good v. Whan, 335 P.2d 911 (Okla. 1959)
• Parties: Lloyd GOOD, Plaintiff in error, v. Carl W. WHAN, d/b/a Whan Drilling Company, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 911

335 P.2d 911

1959 OK 5

Lloyd GOOD, Plaintiff in error, v.Carl W. WHAN, d/b/a Whan Drilling Company, Defendant in Error.

No. 37860.

Supreme Court of Oklahoma.

Jan. 27, 1959.

Rehearing Denied Feb, 24, 1959.

Syllabus by the Court

As to a visitor, whose presence on premises, the proprietor thereof permits and should anticipate, said proprietors owes the duty of ordinary care.Where the visitor has been injured as a result of the proprietor's alleged negligence, the issue of such negligence is for determination by the trier of facts where, on the basis thereof and the reasonable inferences to be drawn therefrom, reasonable men might draw contrary conclusions.In the present case, record examined and held: On the basis of the evidence and such inferences, reasonable men might differ on said issue, and the trial court erred in sustaining defendant's demurrer to the evidence and dismissing the action.

Appeal from District Court of Payne County; R. L. Hert, Judge.

Action by plaintiff to recover from defendant, damages on account of personal injuries he allegedly received by being pushed into a heating stove on defendant's premises by one of his employees.After the sustaining of defendant's demurrer to plaintiff's evidence and the dismissal of the action, defendant appealed.Reversed and remanded.

Richard James, Stroud, James M. Springer, Jr., Stillwater, for plaintiff in error.

Swank & Swank, Stillwater, for defendant in error.

BLACKBIRD, Justice.

Plaintiff in error, hereinafter referred to as plaintiff, instituted the present action against defendant in error, hereinafter referred to as defendant, to recover damages for personal injuries, physical disability, loss of income, etc., resulting from burning his leg on a crude heating stove used in connection with defendant's drilling operations.Some of the material facts forming the background of the action are hereinafter related.

Plaintiff, owner of the surface of, and a one-fourth interest in the minerals in and under, a quarter section of land, resided on the Southeast corner of said tract.He entered into an agreement with the Finley Company, owner of the other three-fourths interest in the minerals, whereby each of said owners would share, in the relative proportions of their interest in the minerals, the cost of drilling a well in the northwestern part of said tract.For the purpose of obtaining a contract for doing the drilling of said well, an employee of defendant's partnership predecessor, Whan & Howard Drilling Company, contacted plaintiff, who referred him to either one of two men connected with the Finley Company; and the drilling contract was thereafter negotiated by said Company.

Either as a part of the original arrangement between plaintiff and the Finley Company, or under a subsequent addition to, or modification thereof, it was agreed between them that after the well reached the depth of the Prue sand, they would determine whether the prospects of encountering production therein would warrant setting pipe at that depth and exploring, or drilling the well, deeper.Under said agreement, if one thought that such expense was justified and the other did not, then the other could abandon the project and leave the expense of setting pipe and drilling the well deeper to his associate.For his benefit in making such determination on his part, plaintiff would go to the well to learn from the geolograph, located in what it termed the 'dog house'(erected alongside the rig), the depth at which the various formations were being encountered in the course of the drilling, in order to relate said well's log to one previously drilled south of it.In the early part of the drilling, plaintiff went to the well for this purpose only in the mornings before his workday began; but, when the well got deeper and closer to the Prue sand, he began going there both morning and evening.On two of these occasions, he encounterd defendant there (in addition to the drilling crew).

On the day of the accident, December 27, 1954, plaintiff made his regular morning trip to the well about 7:30 o'clock.The well was then deeper than 3,700 feet.The day before, one core had been pulled out of it from the Skinner sand, and defendant's drilling crew was in the process of obtaining another such core, which plaintiff wanted to see.

The accident occurred after plaintiff had walked across the rig floor into the dog house and while certain members of the daytime drilling crew were in there putting on their work clothes (preparatory to relieving the night crew) and plaintiff was standing near the stove warming himself and talking to a neighbor visiting the well-site.A member of the night crew, who had rushed from the rig floor into the dog house, went to the tool box behind plaintiff, stooped over to open it, and suddenly stepped backward, pushing plaintiff against the stove and burning his leg.This heater, or stove, was construted of a piece of ten inch oil field pipe standing on legs about twelve inches from the floor, with a gas pipe forming a jet inserted in it.It is of a type in common use in oil field drilling operations.

In his petition, plaintiff alleged, among other things, that he was an invitee on the premises at the time of the accident, and, in general substance, further alleged that the injuries he suffered by being burned were the result of defendant's neglect, or that of his employees for which he was responsible.In defendant's pleadings, he denied plaintiff's allegations of his negligence, also denied, among other things, that at the time of the accident, plaintiff was an invitee on the premises, and, alleged, among other defenses, that the accident was the result of plaintiff's contributory negligence in various particulars.

At the close of plaintiff's evidence establishing the above facts, among others concerning the nature and extent of plaintiff's injuries, and the amount of his damages, unnecessary here to detail, the court sustained defendant's demurrer to plaintiff's evidence and dismissed the action.In doing so, he stated:

'* * * viewed in the most agreeable light towards the plaintiff * * * the Court can come to but one conclusion and that is that ...