Jordan v. Peek

• Decision Date: 19 January 1954
• Docket Number: No. 35366,35366
• Parties: JORDAN v. PEEK et al.
• Court: Oklahoma Supreme Court

Page 242

268 P.2d 242

1954 OK 18

JORDAN v. PEEK et al.

No. 35366.

Supreme Court of Oklahoma.

Jan. 19, 1954.

Rehearing Denied March 16, 1954.

Syllabus by the Court.

1. Where there is competent evidence showing damages alleged and verdict is not excessive, and complaining party does not request trial court to give instruction correctly stating measure of damages, cause will not be reversed because charge does not accurately define measure of damages.

2. In an action for damages for pollution of land, an instruction on defendants' theory of the cause of damage that plaintiff cannot recover if the damage was caused by any one of several causes other than from pollution from defendants' wells, does not have the effect of shifting the burden of proof from plaintiff to defendant, and is not erroneous.

3. Where the evidence tends to establish grossly negligent acts and omissions on the part of the oil lease operator, amounting to a wanton disregard of the rights of the owner of the land damaged by pollution, the submission of the question of punitive damages to the jury under appropriate instructions is proper, and an award of punitive damages in an amount greater than the compensatory damages awarded is not unauthorized and will be sustained, unless shown to have been awarded under the influence of passion or prejudice.

Ames, Daugherty, Bynum & Black, Oklahoma City, for plaintiff in error.

Hervey & May, John G. Hervey and Ralph J. May, Oklahoma City, for defendants in error.

PER CURIAM.

The parties will be referred to as they appeared in the trial court.

Plaintiffs amended petition contained three causes of action. It was alleged that they were the owners of a farm described as the northeast quarter of Section 26, Township 14 North, Range 1 West, Oklahoma County, Oklahoma, and that the defendants, Robert M. Jordan and Bay Petroleum Corporation, were and had been engaged in drilling operations and producing from certain oil and gas wells in Sections 23 and 14, Township 14 North, Range 1 West, Oklahoma County, Oklahoma, being lands located to the north of plaintiffs' lands, and that during the months of June and July, 1949, and continuously thereafter, defendants permitted large quantities of salt water, oil, base sediment and other poisonous and deleterious substances produced from said wells to escape, permeate and flow over the lands of plaintiffs; that during the months of June and July, 1949, about fifteen acres of plaintiffs' lands were flooded with salt water, killing the crops and permanently rendering the soil useless, and killing a number of pecan trees, with the result that the value of the land had depreciated from $20,000 to $15,000, and therefore plaintiffs sought recovery on their first cause of action in the amount of $5,000. In their second cause of action plaintiffs re-alleged the pertinent facts above set forth and further alleged that the defendants intentionally permitted the escape of salt water from their leases and in so doing acted with gross negligence and wanton disregard of the rights of plaintiffs, for which they sought punitive damages in the amount of $3,000. In the third cause of action plaintiffs sought an injunction against the acts complained of, but this third cause of action is not involved in the appeal. The second and third causes of action had been dismissed before trial against defendant Bay Petroleum Corporation and that defendant is not involved in this appeal, because the verdict of the jury on the first cause of action was in its favor.

The defendant Jordan answered by way of general denial except he admitted he was the operator of certain oil and gas wells located on lands to the north of plaintiffs' land.

The jury returned a verdict in favor of the plaintiffs on their first cause of action in the sum of $800 compensatory damages and in the sum of $1700 on the second cause of action as punitive damages.

The defendant Jordan has appealed and assigns and argues his specifications of error under three separate propositions. The first of these is the contention that the trial court erroneously instructed the jury with respect to the test to be applied in determining the market value of the land. The second proposition is that the trial court in its instructions erroneously relieved the plaintiffs from the burden of proof. The third proposition is that the trial court erroneously submitted to the jury the question of punitive damages. We shall consider these in the order in which they are presented in defendant's brief.

The defendant Jordan does not question the sufficiency of plaintiffs' evidence to sustain their recovery of $800 actual damages under their first cause of action. We have reviewed the record and find that the evidence in behalf of plaintiff abundantly supports the verdict on this cause of action for actual damages. We do not deem it necessary to detail all of the proof of plaintiffs on their first cause of action because the defendant Jordan does not question its sufficiency. We are constrained to believe from a review of all the evidence that a verdict in a larger sum for actual damages would have been warranted. Error is urged, however, in the instruction to the jury on the measure of damages. In Instruction No. 14 the trial court charged the jury as follows:

'You are further instructed that in the event you should find that plaintiff has suffered damage by reason of the pollution of his land, as alleged in his petition, then and in that event you are instructed that his measure of damage is fixed by the difference between the reasonable market value of said land immediately before and immediately after said pollution occurred.'

Defendant admits that this instruction is correct but vigorously complains of Instruction No. 15 wherein the court informed the jury of the rule to be applied in determining the market value. This instruction is as follows:

'In determining the question of the market value of the land, you should consider its market value in the light of what a person willing to sell would take for it, and should consider its value for any purpose for which it may reasonably be adapted, and not its value for some particular use which might be made of it by some particular person.'

We agree with defendant that this instruction erroneously states the rule to be applied in determining market value. In City of Tulsa v. Creekmore, 167 Okl. 298, 29 P.2d 101, we defined fair market value as follows:

'By fair market value is meant the amount of money which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it, taking into consideration all uses to which the land was adapted and might in reason be applied.'

We think the trial court should have gone further in Instruction No. 15 and told the jury that, in determining market value, the jury should consider the money that the seller was willing to take for it and the money which a purchaser willing but not obliged to buy would pay to the seller who was willing but not obliged to sell.

The record shows that the defendant did not request an instruction setting forth the rules to be applied in determining the proper measure of damage and, in view of the smallness of the verdict for damage to the land, we have concluded that the giving of the instruction complained of does not justify a reversal. The rule is well established that where there is competent evidence showing damages alleged and the verdict is not excessive and the complaining party does not request the trial court to give an instruction correctly stating the measure of damages, the cause will not be reversed because the judge does not accurately define the measure of damages--National Security Fire Ins. Co. of Omaha, Neb. v. Boatman, 180 Okl. 492, 71 P.2d 624; Magnolia Petroleum Co. v. Jones, 185 Okl. 309, 91 P.2d 769; Shell Petroleum Corporation v. Wood, 168 Okl. 274, 32 P.2d 882; Burden v. Stephens, 174 Okl. 312, 49 P.2d...