Gulf Refining Co. v. Nabers

• Decision Date: 11 December 1939
• Docket Number: No. 5092.,5092.
• Parties: GULF REFINING CO. v. NABERS et al.
• Court: Texas Court of Appeals

Page 843

134 S.W.2d 843

GULF REFINING CO. v. NABERS et al.

No. 5092.

Court of Civil Appeals of Texas. Amarillo.

December 11, 1939.

Appeal from District Court, Hall County; W. R. Ewing, Judge.

Action by W. L. Nabers and others against the Gulf Refining Company for damages allegedly caused to land and crops by defendant's negligence in permitting oil to escape from a pipe line from which it was carried by flood waters of a creek to plaintiff's property, wherein the Federal Land Bank of Houston was made a party and filed a cross-action against defendant. From a judgment for plaintiffs for $1,000, defendant appeals.

Reversed and judgment rendered for defendant.

John Deaver and Sam J. Hamilton, both of Memphis, David W. Stephens and P. O. Settle, both of Fort Worth, and John E. Green, Jr., of Houston, for appellant.

J. O. Fitzjarrald, of Memphis, R. H. Templeton, of Wellington, and J. V. Wheat and Carl Runge, both of Houston, for appellees.

JACKSON, Chief Justice.

On May 25, 1936 the appellee, W. L. Nabers, et al., instituted this suit in the District Court of Hall County against the appellant to recover $4,000 damages alleged to have been caused to the land and crop of appellee by the negligence of appellant, the Gulf Refining Company, in permitting oil to escape from its pipe line on June 2, 1934 and be carried by the flood waters of Oakes Creek to appellee's property.

On October 4, 1938 W. L. Nabers filed his fourth amended original petition in which he claimed ownership of the land and crops he asserts were damaged and destroyed, alleged that appellant was a corporation engaged in the transportation of crude oil by pipe lines, one of which crossed Oakes Creek about seven or eight miles north of his property over which the water of said creek flows; that on the night of June 2, 1934 Oakes Creek overflowed, appellant's pipe line was broken and great quantities of oil escaped therefrom and accompanied the overflow of water down the creek to and upon appellee's land, remained there until 110 acres thereof were saturated and soaked with crude oil and the fertility of the land destroyed; that the land immediately preceding the overflow was of the reasonable market value of $16,000; that the oil overflow killed seventy-five growing trees and decreased the market value of his land to less than $15,000, which resulted in damages to him in the sum of $1,000.

The plaintiff then pleaded the loss of certain crops for 1934, 1935, 1936 and 1937 which he asserts was all caused by the oil which overflowed to and upon his land on June 2, 1934. The petition also contains these allegations: "Plaintiffs would further show to the court that while it was apparent immediately after the flooding of his land in June, 1934 that it might be impossible to grow crops on said lands for several years thereafter, it was impossible to determine the full extent of the damage to the crops of any year until the end of each succeeding crop year and that plaintiff's cause of action for damages for the loss or partial loss of crops for each successive year could not be determined until the end of each year; and that the cause of action for the crops damaged for the year 1935 did not accrue until the last month and last day of said year; that the cause of action for crop damages for the year 1936 did not accrue until the last month and last day of that year, and that the crop damages for the year 1937 did not accrue until the last month and last day of that year."

The Federal Land Bank of Houston held a lien against the appellee's land, was made a party, and filed a cross-action in the suit against appellant but later voluntarily dismissed its suit and no further consideration is given to such cross-action.

The appellant answered by demurrers, general denial, alleged that the damages, if any, to plaintiff's land and crops were caused by excessive rains and flood waters on Oakes Creek which constituted an act of God; it also pleaded the two years' statute of limitation.

In response to special issues, the jury, in effect, found that the damage was not due to an act of God; that 110 acres of appellee's land was overflowed with oil on May 23, 1934; that appellant was guilty of negligence in the construction and maintenance of its pipe line and such negligence was the proximate cause of the oil overflow and the damage to plaintiff's land and crops; that the land had a market value prior to the oil overflow; that the oil overflow killed seventy-five trees on the land which depreciated its market value $75. The jury found crop damages for the year 1934 aggregating $510 and for the year 1935 aggregating $415. On these findings judgment was rendered for appellee for $1,000, and this action of the court is before us for review.

The appellant challenges as error, because immaterial and not warranted by the pleadings, the action of the court in submitting to the jury special issue No. 11, which is as follows: "How long...