Indian Territory Illuminating Oil Co. v. Graham

• Decision Date: 18 June 1935
• Docket Number: Case Number: 24664
• Citation: 50 P.2d 720,1935 OK 691,174 Okla. 438
• Parties: INDIAN TERRITORY ILLUMINATING OIL CO. et al. v. GRAHAM et al.
• Court: Oklahoma Supreme Court

1935 OK 691

50 P.2d 720

174 Okla. 438

INDIAN TERRITORY ILLUMINATING OIL CO. et al. v. GRAHAM et al.

Case Number: 24664

Supreme Court of Oklahoma

Decided: June 18, 1935

Syllabus

¶0 1. Appeal and Error - Harmless Error - Restating Question to Witness After Adverse Ruling of Court.

The conduct of counsel in restating a question to a witness, notwithstanding the adverse ruling of the court, will not cause a reversal where the court promptly sustains an objection and declines to permit introduction of the testimony, and an examination of the record does not show resulting prejudice sufficient to indicate a miscarriage of justice.

2. Master and Servant - Maxim "Respondeat Superior" Held not Applicable Where Petition Charged Master With Violation of Nondelegable Duty.

The maxim of "respondeat superior" has no application to a petition charging negligence attributable to the master and its servants, where the petition also charges the master with negligence in permitting salt water to escape from its storage tank and thus polluting a stream in which plaintiffs' cattle were injured, since the duty of preventing the salt water from escaping from the master's premises was a nondelegable duty.

3. Trial - Instructions Held not to Invade Province of Jury in Assuming Conflicting Issues Proved.

Where the instructions of the court require the finding of a jury to be based on a preponderance of the evidence, there is no invasion of the province of the jury in assuming conflicting issues proven, but such instructions are correct.

4. Trial - Duty of Court to Give Instructions Correctly Defining Duties Imposed by Law on Parties.

The court should give instructions correctly defining the duties imposed by law on the parties to the action.

5. Appeal and Error - Sufficiency of Instruction on Measure of Damages Absent Requested Instruction.

Where there is sufficient competent evidence to prove the damages alleged, and the verdict is not excessive, and, in the absence of a request for an instruction on the measure of damages, the case will not be reversed because the elements of damage are not more accurately stated.

6. Evidence - Premiums Awarded Cattle as Evidence of Value.

Testimony of premiums awarded cattle in competitive contests may be received in evidence and considered by a jury in determining value.

7. Waters and Water Courses - Action for Damages to Cattle From Pollution of Water Supply by Oil Operations on Osage Indian Lands - Compliance by Plaintiff With Federal Acts and Regulations Held not Condition Precedent to Suit.

Compliance with acts of Congress and rules and regulations promulgated under the provisions thereof is not required as a condition precedent to the prosecution of an action for damages to cattle arising from the pollution of a water supply in violation of section 11580, Okla. Stats. 1931.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by W.H. Graham and others, copartners, against the Indian Territory Illuminating Oil Company, the Barnsdall Oil Company, N.E. Wooley, and J.B. Darby for damages. A verdict was directed for defendants Wooley and Darby, and from an adverse judgment the other defendants appeal. Affirmed.

W.P. McGinnis, Hamilton & Howard, Archibald Bonds, Fred M. Carter, M.D. Kirk, F.V. Phipps, and Jack Paden, for plaintiffs in error.

McCoy, Craig & Pearson, for defendants in error.

PER CURIAM.

¶1 The plaintiffs herein sued the defendants to recover damages alleged to have been caused by the pollution of the stock water supply in a pasture containing approximately 320 acres used for grazing purposes for the cattle of the plaintiffs. Plaintiffs alleged that defendants in their oil and gas mining operations caused or permitted oil, salt water, and other deleterious substances to escape and flow into a creek used as the water supply for the cattle of the plaintiffs, and as a result of drinking the polluted water some of the cattle died and others were injured; that the cattle constituted a dairy herd and their milk supply was decreased to such an extent that plaintiffs ultimately were compelled to abandon their dairy business. The defendants, answering, after general denial, admitted their joint mining operations; alleged that their operations were carried on under a departmental lease, subject to the rules and regulations of the Secretary of the Interior, and alleged that plaintiffs had failed to comply with such rules and regulations in giving notice of their alleged damage within the prescribed period; they pleaded that compliance with such rules and regulations constituted a condition precedent to the right of recovery, and say that the failure of the plaintiffs to comply therewith operated as a bar against the prosecution of the suit. Defendants denied that they had polluted the fresh water supply used for the cattle of plaintiffs and denied that the cattle had received injuries by drinking from the creek alleged to be polluted; alleged that defendants had constructed a fence to protect the cattle from drinking the water; alleged that plaintiffs knew at the time they released their cattle in the pasture, they would have access to the stream into which drainage from defendants' lease flowed, and that they could have, for a small sum of money, built a fence and prevented their cattle from drinking the water in said stream and avoided the resulting damage. Plaintiffs replied by general denial. Trial of the cause was had and a verdict returned for the plaintiffs against the defendant oil companies and judgment thereon entered in the sum of $4,000. Under instructions of the court the jury returned a verdict in favor of defendants N.E. Wooley and J.B. Darby, employees of the defendant oil companies. The defendant oil companies appeal from the judgment rendered. The defendants do not discuss their 21 assignments of error separately, but group them under the following propositions:

(1) Misconduct of counsel for plaintiffs in the examination of a witness.

(2) Error in overruling motion of the defendants for judgment notwithstanding the verdict under the rule of respondeat superior.

(3) Error in the instructions of the court.

(4) The admission of incompetent testimony.

(5) Failure of plaintiffs to comply with the acts of Congress and the rules and regulations promulgated by the Secretary of Interior as a condition precedent to the right of recovery.

¶2 We will discuss the errors assigned in the order of presentation in the brief of the defendants, as above outlined.

¶3 After lengthy testimony had been given by W.H. Graham, Jr., one of the plaintiffs in the cause, detailing practically all of the facts upon which recovery was sought, plaintiffs introduced W.H. Graham, Sr., as a witness. After the usual preliminary questions were propounded, this witness was asked whether he had heard all of the testimony which had theretofore been given by his son, W.H. Graham, Jr. Upon an affirmative answer, counsel for plaintiffs inquired as to whether or not all of the testimony given by W.H. Graham, Jr., was substantially correct and whether the witness would give the same answers as his son if asked the several questions which had been propounded to W.H. Graham, Jr. Defendants objected to this manner of interrogating the witness, which objection was sustained by the court. The attorney for plaintiffs restated the question and the court again sustained an objection thereto. When plaintiffs' counsel again asked the question and an objection was made the court overruled the objection. Whereupon counsel for defendants asked leave to present their argument on the objections in the absence of the jury. The court excused the jury, and after considerable argument as to the form of the question and the procedure to be followed the court again sustained the objection of the defendants to the question. The witness was then excused. It would have been better practice for plaintiffs' counsel to have desisted from his efforts to introduce the testimony in the manner disclosed by the record and to have submitted to the ruling of the court, saving his exceptions; however, the court promptly sustained objections to the questions asked, excluded the jury during the argument, and thereafter sustained defendants' position. There is nothing in the record to disclose that the attorney for plaintiffs was acting in bad faith or maliciously. He was perhaps too persistent in repeating the question which the court had excluded. An examination of the record does, not disclose that prejudicial error resulted from the conduct of counsel for plaintiffs. Even where incompetent testimony is introduced, if the court strikes the same from the record, unless it is apparent that prejudice resulted, the court will not reverse the cause. Letcher v. Skiver, 99 Okla. 269, 269 P. 1029. The record does not disclose such prejudice or error as to warrant a reversal of the case on this proposition.

¶4 Employees of the defendant oil companies were made parties defendant by the plaintiffs. The verdict of the jury under instructions of the court was in favor of these employees. Defendants, in their motion notwithstanding the verdict, urge that under the rule of respondeat superior, the court should have granted a judgment in favor of the oil companies, since the finding of the jury in favor of these employees negatived any negligence charged in the petition against the oil companies. If the liability in this action was predicated solely upon the negligent acts of these employees and there were no other allegations of negligence of the master, then the position of the defendants would be correct. We find from an examination of the petition that plaintiffs did not rely solely upon the negligent acts of the two employees, who were exonerated by the verdict of the jury, but alleged generally that the defendants were guilty of negligence. The court, in the case of Texas Company v. Alred, 167 Okla. 128, 28 P.2d 556, in passing upon an identical...