Independent Eastern Torpedo Co. v. Carter

• Decision Date: 07 July 1939
• Docket Number: No. 1926.,1926.
• Citation: Independent Eastern Torpedo Co. v. Carter, 131 S.W.2d 125 (Tex. App. 1939)
• Parties: INDEPENDENT EASTERN TORPEDO CO. v. CARTER.
• Court: Texas Court of Appeals

Page 125

131 S.W.2d 125

INDEPENDENT EASTERN TORPEDO CO. v. CARTER.

No. 1926.

Court of Civil Appeals of Texas. Eastland.

July 7, 1939.

Appeal from District Court, Comanche County; R. B. Cross, Judge.

Suit by J. F. Carter against the Independent Eastern Torpedo Company for damages alleged to have been caused by negligence of defendant in shooting an oil well owned by plaintiff. Verdict for plaintiff for $1,615, and from judgment thereon defendant appeals.

Reversed and cause remanded for a new trial.

Ben J. Dean, of Breckenridge, for appellant.

Fred O. Jaye, of DeLeon, for appellee.

FUNDERBURK, Justice.

J. F. Carter sued Independent Eastern Torpedo Company to recover damages alleged to have been caused by negligence of the defendant in shooting an oil well belonging to the plaintiff. The alleged negligence of the defendant consisted of the use of too short a fuse on the exploding squib; the use of too large a flag (to guide the descent of the squib), and the placing of too much water in the well so that it came up above the bottom of the casing.

The defendant alleged three grounds of contributory negligence. In a jury trial judgment upon the verdict of the jury in favor of plaintiff was rendered for the sum of $1,615. The defendant has appealed. The parties will be referred to as plaintiff and defendant, the same as in the trial court.

By special exception the defendant challenged the sufficiency of plaintiff's Third Amended Original Petition (trial pleading) on the ground that it alleged no duty of the defendant to place water in the well preparatory to shooting the same. Plaintiff alleged, in substance, that Tige Frogge, defendant's shooter, poured water into the well in such an amount that it came up into the casing; that it was customary practice in shooting a well to place water therein before exploding the main charge of explosives; that ordinary care and skill require only "a small amount of water should be placed therein and that should be done by the use of a bailer; but under no circumstances should water be poured into a well as was done by said Tige Frogge at the time in question, and under no circumstances should said water be in such quantity as to bring the same up to and into the casing in said well; that to do so is an act of negligence" etc. There was no allegation of facts to support a legal conclusion that it was the duty of the defendant to place any water in the well. Absent any basis for such a conclusion, there was therefore no fact alleged to support an implication of any duty on the part of defendant to use care in placing the proper amount of water in the hole.

If a fact, it is not believed to be a fact of which the court can take judicial knowledge, that the employment by a well owner of a Torpedo Company to shoot a well, implies, by virtue of such relationship alone, any duty on the part of the latter owing to the former to place water in the well in proper manner and amount before shooting. An applicable legal proposition is: "There can be no actionable negligence in the absence of some duty which has been neglected or violated, and hence in order that a person may have a cause of action on account of an injury to person or property resulting from negligence it is necessary that the act or omission complained of should have involved some breach of duty owed to him or to the person whom he represents by the person of whose negligence he complains." 45 C.J. p. 639, § 16. Texas decisions cited in support of the text (to mention only decisions of the Supreme Court and Commission of Appeals) are Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540, 45 L.R.A.,N.S., 303; San Antonio Gas & Electric Co. v. Ocon, 105 Tex. 139, 146 S.W. 162, 39 L.R. A.,N.S., 1046; International & G. N. Ry. Co. v. Vallejo, 102 Tex. 70, 113 S.W. 4, 115 S.W. 25; Texas Central Ry. Co. v. Harbison, 98 Tex. 490, 85 S.W. 1138; Galveston, etc., Ry. Co. v. Brown, 95 Tex. 2, 63 S. W. 305; Galveston, etc., Ry. Co. v. Gormley, 91 Tex. 393, 43 S.W. 877, 66 Am. St.Rep. 894; Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., Tex.Com. App., 298 S.W. 554; Koons v. Rook, Tex. Com.App., 295 S.W. 592. In T. J. Mansfield Const. Co. v. Gorsline, Tex.Com. App., 288 S.W. 1067, 1070, it was declared: "An essential element of negligence is a duty; if there is no duty there can be no negligence. To constitute negligence there must appear duty on the part of the plaintiff in error to the party injured and legal non-performance of that duty." As well said by Chief Justice Key in Freeman v. Nathan, Tex.Civ.App., 149 S.W. 248, 254: "Negligence is not the mere failure to act with ordinary prudence. Such failure alone never can give rise to a cause of action or constitute a ground of defense. Negligence is the breach of a duty. It is doing something which duty to another requires not to be done, or omitting to do something which duty requires to be done."

With the true relation of legal duty and negligence thus well established, it is not difficult to anticipate what must be the rule of pleading as affected thereby. "The declaration, complaint, or petition must show the existence of a legal duty on the part of the defendant to exercise care as to the person or property injured, at the time and place of the injury; it must allege facts showing a duty owing by defendant to the person injured to do or not to do the thing complained of as the proximate cause of the injury. It is insufficient to allege merely that the defendant negligently performed or failed to perform certain acts, whereby the injury was caused, without an allegation showing defendant's duty in the matter." 45 C.J. 1060, § 630. Some Texas decisions are cited and many more exist as support for such statement of the law. The concluding clause of the paragraph above quoted is "although there is some authority against the strict application of this rule." No Texas decisions are cited as authority for that statement.

The question next occurs: How must the duty be alleged? Needless to say, the pleader should state facts (conclusions of fact) "in contradistinction to a statement of evidence, of legal conclusions, and of arguments." District Court Rule 2, 142 S.W. xvii; R.S.1925, Art 1997. "The sufficiency of the pleading of such duty", to quote further from Corpus Juris, "must be determined upon the facts from which the duty is deduced; and in order to be sufficient the duty of care on the part of defendant must be shown by an allegation of facts from which the duty follows as a matter of law. It is sufficient to state facts from which the duty so arises without showing the details and if such facts are stated it is not necessary to allege the manner in which the duty was imposed. So, also, if the facts stated show a legal duty of care, an express allegation of such duty is not necessary and if such an allegation is made it may be treated as surplusage, for if the particular facts stated raise the duty the allegation is not necessary and if they do not it is unavailing. A mere general allegation of the existence of such duty without a statement of facts from which the duty arises is insufficient as being merely a statement of a legal conclusion." 45 C.J. p. 1061, § 631.

In San Antonio & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 102, 46 S.W. 28, 29, the court, in sustaining a general demurrer to a petition attempting to allege a cause of action for negligence involving the attractive nuisance doctrine, said: "In order to state a cause of action against the defendant in a case like this, the facts alleged in the petition must show (1) a duty owed by defendant to the party injured; (2) a failure on part of defendant to exercise the degree of care required of it by law in the performance of that duty. It takes both to constitute negligence." (Italics ours) That decision has subsequently more than once been re-affirmed by the Supreme Court. Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S.W. 375, 31 L.R.A.,N. S., 1018, Ann.Cas.1913A, 111; Denison Light & Power Co. v. Patton, supra. In the last cited case it was said [105 Tex. 621, 154 S.W. 541]: "Negligence is constituted only through failure to discharge a duty." In Dobbins v. Missouri, K. & T. Ry. Co., 91 Tex. 60, 62, 41 S.W. 62, 63, 38 L.R. A. 573, 66 Am.St.Rep. 856, it was declared to be the law that "If there be no duty, the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby."

In re-affirmance of that declaration of the law the court in Wichita County Water Imp. Dist. No. 1 v. Curlee, 120 Tex. 103, 35 S.W.2d 671, held a petition subject to general demurrer on the ground that it alleged no facts showing the existence of a legal duty although it duly averred acts denominated negligence and a proximate cause of the death of plaintiff's cattle. It was further held that an averment that plaintiff's cattle were "rightfully upon plaintiff-in-error's right of way at the time they were killed" being but a legal conclusion and the only facts alleged not supporting the conclusion, was not sufficient as an allegation of legal duty.

The above authorities leave no escape, we think, from the conclusion that as to the particular ground or grounds of negligence involving the manner of placing the water in the well, and excessive amount of water, plaintiff's petition was subject to the special exception urged.¹

There were two other grounds of asserted negligence, one, the use by the shooter of a fuse alleged to be too short, and the other, the use of an excess amount of cloth (part of a sack) as a flag attached to the squib used in exploding the nitro-glycerine in the well. The alleged effect of the first was to cause the explosion prematurely; that is, before the squib had reached the intended place in the well; the other, the same by slowing down the speed of the descent of the...