Jackson v. Central Torpedo Co.

• Decision Date: 04 May 1926
• Docket Number: 16435.
• Citation: 246 P. 426,117 Okla. 245,46 A.L.R. 338,1926 OK 434
• Parties: JACKSON et al. v. CENTRAL TORPEDO CO.
• Court: Oklahoma Supreme Court

246 P. 426

117 Okla. 245, 46 A.L.R. 338, 1926 OK 434

JACKSON et al. v. CENTRAL TORPEDO CO.

No. 16435.

Supreme Court of Oklahoma

May 4, 1926

Syllabus by the Court.

One who undertakes, pursuant to an oral agreement, "to shoot" an oil well by the use of nitroglycerin for another, comes into such a relation to the owner of the well that he may be held liable in tort in case he performs the services incumbent upon him by reason of such agreement in so negligent a manner as to damage or destroy the oil well.

Where the transaction complained of had its origin in a contract which places the parties in such a relation that in attempting to perform the promised service the tort was committed, then the breach of the contract is not the gravamen of the action. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action "ex delicto" and not an action "ex contractu."

In this case plaintiffs' petition discloses that the transaction complained of and the injury sustained resulting in damages was the result of the negligent and unskillful manner in which the operator attempted to perform the services of "shooting" the well incumbent upon him by reason of the contract, and the damages sought to be recovered are necessarily based upon the negligent acts of the defendant and not upon a breach of the contract. Hence, we hold that the third subdivision of section 185, C. S. 1921, providing that certain character of actions shall be brought within two years controls in this case, rather than the second subdivision of said section, which provides that "an action upon a contract, express or implied, not in writing," can only be brought within three years from the time when the cause of action arose.

Commissioners' Opinion, Division No. 3.

Appeal from District Court, Creek County; W. L. Eagleton, Judge.

Action by L. B. Jackson and others against the Central Torpedo Company. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Thrift & Davenport, of Sapulpa, for plaintiffs in error.

G. C Spillers and Donald Prentice, both of Tulsa, for defendant in error.

JONES C.

This action was instituted in the district court of Creek county by the plaintiffs in error, as plaintiffs, against the defendant in error, as defendant, to recover certain sums of money as damages. Upon the trial of the case the defendant interposed an objection to the introduction of evidence on the part of the plaintiffs for the reason "that the petition showed on its face the cause of action, if any, is barred by the statute of limitation."

This objection was sustained by the trial court, and plaintiffs' petition dismissed. It appears from the allegation of plaintiffs' petition that the plaintiffs were the owners of and operating an oil well which was producing about 25 barrels of oil per day, and that plaintiffs employed the defendant, Central Torpedo Company to "shoot" the well in order, if possible, to increase the production thereof. The defendant company promised and agreed to perform said services for a consideration of $61. Plaintiffs further allege that said defendant, "held itself out to the public and to those plaintiffs as being qualified and expert in the performance of the duty of shooting oil wells," and that there was an implied contract that defendants would shoot said oil well in the customary manner, and that the customary way of performing such services was "to lower into the well a line known as a torpedo line, to which is attached what is known as a shell containing nitroglycerin, and to set shell at the bottom of the well and in the oil-producing sand, and at said last place to cause said nitroglycerin to be exploded in order to increase the production in the oil-bearing sand that it is likewise the custom of said torpedo company to lower the shell to which the torpedo line is attached into the well by operating hand reels, in order that the said shell may be lowered slowly and always under the absolute control of the shooter."

Plaintiffs further allege that said company acting through its agent Oscar Bond, negligently and carelessly performed its duty and breached the contract of employment in that it undertook to lower a shell, containing ten quarts of nitroglycerin, in said well by attaching same to a short piece of torpedo line about 15 feet long, and that said line was attached to the bailer, which was attached to the sand line, and that same was lowered into the well by the operation of the sand reels, which appear to be a part of the oil well rigging which is operated by the engine attached to said machinery, and in a manner not customary in the performance of said services; that by reason of the vibration caused by the sand line and bailer, the cap containing the nitroglycerin was unhooked, or became detached, from the bailer at a distance of about 600 feet from the top of the well, and fell a distance of about 1,500 feet, striking the surface of the oil, which stood about 500 feet from the bottom of the well, and that the nitroglycerin was caused to explode at that point, and that the explosion bursted and destroyed the casing, and that the plaintiffs were required and did expend large sums of money in an effort...