Jones v. Nafco Oil and Gas, Inc.

• Decision Date: 10 June 1964
• Docket Number: No. A-9869,A-9869
• Citation: 380 S.W.2d 570
• Parties: Hall JONES v. NAFCO OIL AND GAS, INC., et al.
• Court: Texas Supreme Court

Page 570

380 S.W.2d 570

Hall JONES v. NAFCO OIL AND GAS, INC., et al.

No. A-9869.

Supreme Court of Texas.

June 10, 1964.

Rehearing Denied July 15, 1964.

Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for petitioner.

Simpson, Adkins, Fullingim & Hankins, Amarillo, for respondents.

GRIFFIN, Justice.

This is a suit brought by petitioner, who was the plaintiff in the trial court, against respondent Nafco Oil and Gas (hereinafter called Nafco) and its employee, Sam Wysong, as defendants, for damages suffered by plaintiff's cattle. This damage was alleged to have been caused by the negligence of the defendants in permitting the escape of condensate, a liquid hydrocarbon, on the ground where plaintiff's cattle drank the same. Upon the conclusion of plaintiff's testimony, the trial court gave the jury an instructed verdict in favor of the defendants. This action was affirmed by the Court of Civil Appeals. 371 S.W.2d 584.

Plaintiff's application for writ of error was granted. The parties will be referred to by the designation they had in the trial court.

We affirm the judgment of the Court of Civil Appeals.

September 29, 1959, plaintiff was pasturing some cattle on the section of land in Hansford County, Texas, whereon defendant Nafco had a gas well which in addition to gas, produced as a by-product a hydrocarbon liquid referred to as distillate or condensate. This well was being produced by Nafco under an oil and gas lease dated in 1953, and covering the section of land whereon the gas well was located. This well had been producing for some five or six years prior to September, 1959.

Plaintiff Jones lived in Hansford County, Texas, and had been familiar with the section of land and the gas well thereon for some time prior to his taking a grazing lease from the owner of the land in May, 1958. This grazing lease of the surface was for a one-year period, and in May, 1959, plaintiff renewed the same for an additional year.

The gas well, separator, storage tanks and discharge pipe all were on the land May 1st in 1958, and continued to operate in the same manner and methods at all times prior to September 22, 1959, and on up to the date of trial of this cause in November, 1962.

Plaintiff Jones testified that prior to the time before September 22, 1959, he had not seen any liquid hydrocarbons out on the surface of that section anywhere. He testified he had been over all that section many times during the life of his grazing lease; that he had 'never seen any liquid hydrocarbons loose or any indication of them being loose on that section'; that he knew that the contents of the storage tanks were trucked from the premises at irregular intervals by trucks which had the name 'Groendyke' on them. He further testified that on September 22, 1959, around 2:00 or 3:00 o'clock in the afternoon was the first time he had ever seen any fluid, whether it was condensate or salt water or anything else, around that well location. Never before on that day, the preceding day nor any time before, had he seen any fluid spilled out there on the section.

Plaintiff testified that around 10:00 o'clock in the morning of September 22, 1959, the cowboy who was looking after the cattle on this section called into Spearman to plaintiff and reported some of the cattle were dead, and others sick and dying. Plaintiff immediately drove to the pasture, and seeing his cattle dead and dying got in touch with Dr. Rinker, a veterinarian, and took him out to see the cattle.

Dr. Rinker testified to seeing the cattle, performing two or more autopsies on dead cattle, and that from what he found as a result of the autopsies, it was his opinion that the cattle were suffering from liquid hydrocarbon poisoning. He treated a number of cattle that afternoon and until a little after dark. Dr. Rinker on cross-examination was asked: 'To be perfectly fair and honest with us * * * you say that that (drinking liquid hydrocarbons) is possibly what caused it, and that is all you will say, isn't it?' He answered: 'That is right.'

The doctor and plaintiff each testified that about 2:00 or 3:00 o'clock that afternoon they went to the gas well and there observed a puddle of condensate or distillate at the end of a drainpipe connected to a valve at or near the bottom of each of the storage tanks. The evidence showed that all the equipment of this well, except the well head, was enclosed with a wire fence sufficient to turn the cattle in the pasture. The drainpipe extended from the storage tanks under the surrounding fence, and to a point 4 to 6 feet beyond the fence. At the end of this drainpipe was the puddle of liquid testified to by Dr. Rinker and the plaintiff, and one or two other witnesses. No witness saw any one or more of the cattle drink any of this liquid hydrocarbon at any time. Dr. Rinker and plaintiff testified they observed a discolored strip of grass where it appeared some of the liquid had run 30 to 50 feet down a slight slope. All witnesses who testified to this fact, testified there was no liquid on said slope, that the ground was not damp or wet, but was dry, and none saw any cattle eating any of the grass or drinking any liquid of any kind from this discolored strip which in their opinion smelled like and was caused by liquid from the end of the drainpipe.

Dr. R. H. Miller, Jr., a veterinarian from Amarillo, Texas, was called by plaintiff to examine his sick cattle. Dr. Miller reached the pasture September 24, 1959, and at Mr. Jones' request, performed an autopsy on a sick heifer which had been killed by Mr. Jones after Dr. Miller reached the pasture. Dr. Miller testified that from his autopsy of the dead animal he found symptoms indicating the heifer had died from liquid hydrocarbon poisoning. He also testified: 'Those symptoms I just gave are common, commonly observed in this condition, but they can also be symptomatic of other conditions as well, other diseased conditions as well. They are not specific, in other words.'

Mr. Sam Wysong, the only witness offered by defendants, testified he was the 'switcher' employed by Nafco to keep the equipment on the well, the separator and the storage tanks in good repair, and to check the storage tanks to see they were emptied by Groendyke at such times as to prevent the waste of the condensate stored therein. He testified he was on this lease five days out of each week; that he and Herman Dye, Nafco's production superintendent in the field, were the only employees of Nafco who had keys that would unlock the valves at the bottom of the storage tanks and through which must pass the drainage from the tanks into the discharge pipe leading outside the fence enclosing the tanks; that a Mr. McRee, who drove the Groendyke tank truck into which the condensate was unloaded and transported to the destination as directed by his Nafco supervisors, also had a key to these valves; that Groendyke was paid by the barrel for each tank of condensate it hauled from the lease; that he would notify Groendyke when there was a tank truck load of condensate to haul away from the lease, but that he did not direct Groendyke where to deliver and unload the tank truck because Groendyke's employee knew where it was supposed to go. He further testified that he did not unlock the valves on the drainpipe prior to, nor on the day the cattle sickened and died; that the only time prior to September 22, 1959, that he had seen any liquid on the ground on this lease standing in a puddle at the end of the drainpipe or elsewhere was when Mr. McRee, Groendyke's driver, would drain off two or three barrels of water from the bottom of the tank, prior to unloading the tanks into Groendyke's tank truck; that this unloading took place on the average of every thirty (30) days to six (6) weeks, depending on weather conditions; that prior to that time he had never seen any discolored strip of grass or ground leading downhill from the end of the drainpipe.

On the afternoon of the 21st of September, 1959, he was at the well and gauged the tanks and determined they needed emptying and that when he reached Spearman, he notified Groendyke that the tanks needed emptying the next day; that he had never seen these tanks overflow; that he did not open the drain valves, and that there was no leakage from these valves; that he did check the valves, other equipment and the drainpipe and there was no dripping of liquid from the pipe nor puddles of any liquid on the ground at this time; that he was again at this well about 8:00 A.M. the morning of September 22, 1959, and prior to Groendyke's unloading of the tanks, and again he inspected the premises and the equipment and the valves were not leaking, nor was there any puddle of liquid nor dripping from the drainpipe; that when he arrived on the lease that morning...