Julian v. Sinclair Oil & Gas Co.

Decision Date20 February 1934
Docket NumberCase Number: 20931
Citation1934 OK 96,32 P.2d 31,168 Okla. 192
CourtOklahoma Supreme Court

¶0 1. Negligence -- "Invitee" and "Licensee" Distinguished.

In differentiating between an invitee and a licensee, an invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.

2. Same--Care Due Licensee on Premises--Liability for Injuries--Exercise of Due Care as Question for Jury.

Where a person is granted express permission to use the premises of another for a use of his own, he is a licensee, and his rights are not to be determined by the rule applicable to trespassers, but as to him the owner is required to exercise ordinary care to avoid injury to him and in a case where such person is injured through a defective condition of the premises, the question as to whether the owner exercised such care is a question of fact for the jury.

3. Same--Gas--Liability to Person Injured by Escape of Natural Gas.

A higher degree of care and vigilance is required in dealing with natural gas than in the ordinary affairs of life and business, and one who handles such a dangerous agency must use a degree of care to prevent damage from the escaping of gas which is commensurate with the danger which it is its duty to avoid, and where a person is injured by the escape of natural gas, the question as to whether or not the company engaged in dealing with and handling said natural gas has used that degree of care and caution to prevent its escape is a question of fact for the jury.

Appeal from District Court, Okfuskee County; John L. Norman, Judge.

Action by Nathan Julian, a minor, by his father and next friend, Charles Julian, against the Sinclair Oil & Gas Company. Demurrer to plaintiff's evidence sustained, and he appeals. Reversed and remanded.

Lydick, McPherren & Jordan and Logan Stevenson, for plaintiff in error.

Edw. H. Chandler and Summers Hardy, for defendant in error.


¶1 This is an action filed in the district court of Okfuskee county by Nathan Julian, a minor, by his father and next friend, Charles Julian, against the Sinclair Oil & Gas Company, a corporation, for damages for personal injuries caused by a gas explosion.

¶2 At the trial of said cause a demurrer to plaintiff's evidence was sustained, from which order this appeal has been lodged. The parties will be referred to as they appeared in the trial court.

¶3 The record shows that Charles Julian, father of the injured plaintiff, during the month of January, 1927, entered into an oral contract of employment with the defendant company. It was agreed that said Julian should receive a salary of $ 130 per month for performing the duties of a roust about. A further agreement was made through the agents of the company that he would be furnished gas for his residence if he was close enough to gas to have access thereto. It was further agreed that he was to have the privilege of using a concrete cellar constructed by defendant on a lease known as the Pierce lease for the use of its employees, if he got close enough to the cellar to have access thereto.

¶4 Pursuant to said agreement the said Julian went to work for defendant January 11, 1927, and about three weeks later rented a house situated about 200 feet north of the lease known as the Pierce lease, which was being operated by defendant, on a lease known as the Gypsy lease. Julian thereafter moved his family, including the plaintiff, a boy 13 years of age, into the house on the Gypsy lease. It is shown that a one)inch gas pipe extended from the residence in a southwesterly direction toward the Pierce lease, which apparently had been connected with the gas pipe of defendant for the purpose of furnishing gas to prior occupants of the residence, but that a section of the pipe had been removed. Julian approached one Mr. Odin, a farm boss of the defendant company, with reference to securing gas for his residence, and was furnished a piece of pipe to complete the gas line and the necessary tools to install the pipe, and after making the necessary repairs to the line Julian turned the gas into his residence pursuant to the previous agreement with the defendant, and proceeded to use the gas.

¶5 The residence of the said Julian was too far removed from the concrete cellar of defendant for access thereto, but it is shown that an old abandoned cellar was situated just across the line of the Gypsy lease and on the Pierce lease operated by defendant; that the cellar was in need of repair; that the said Julian again approached the farm boss, Mr. Odin, and was granted permission to use the abandoned cellar and was furnished the necessary tools and lumber by the defendant for the repairing of the cellar; that Julian and another employee of the company performed the labor necessary to repair the Cellar and it was thereby made available and fit for use by the Julian family.

¶6 On April 6, 1927, it is shown that a storm was approaching, and the Julian family attempted to take refuge in the cellar from the approaching storm; that, as they entered the cellar, plaintiff, Nathan Julian, was carrying a lantern; the cellar was full of gas, which thereupon exploded, causing severe injuries to the plaintiff, for which he seeks to recover damages in this action.

¶7 It is shown that the gas line herein above mentioned was laid along the west side of the cellar, and that immediately north of the cellar was raid an oil pipe line which was located on top of the gas line and crossed the same a few feet from the northwest corner of the cellar. It is asserted that the vibration of the oil pipe line caused a break in the gas line from which the gas escaped through the loose soil surrounding the same into the cellar, which was the cause of the explosion. The record discloses that the leak at this point had been noticed several days prior to the explosion, and after the explosion the line was dug up and the leaky pipe inspected by several witnesses.

¶8 Plaintiff contends that the trial court erred in sustaining a demurrer to the evidence for the reason that the evidence discloses that plaintiff was an invitee upon the premises of the defendant company, and therefore the defendant owed to him the duty of keeping and maintaining the premises in a reasonably safe condition; that under the evidence adduced it is shown that defendant knew or should have known that the gas was escaping from the gas pipe line, and defendant was therefore guilty of negligence in failing to remedy the defective line. It is further urged that natural gas being a highly dangerous substance, any person handling said gas is required to use a higher degree of care and vigilance than in the ordinary affairs of life and business; and under the evidence offered by plaintiff, the question as to whether or not defendant used such care and vigilance as required under the circumstances is a question of fact which should have been submitted to the jury under the proper instructions.

¶9 The first issue for determination is whether plaintiff is an invitee or a licensee. In Atchison, T. & S. F. R. Co. v. Cogswell, 23 Okla. 181, 99 P. 923, this court said:

"The principle appears to be that invitation is inferred where there is a common interest or mutual advantage while a license is inferred where the object is the mere pleasure or benefit of the person using it."

¶10 In Midland Valley R. Co. v. Little john, 44 Okla. 8, 143 P. 1, it is said:

"In differentiating between invitees and licensee, an invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it."

¶11 In City of Shawnee v. Drake, 69 Okla. 209, 171 P. 727, it is said:

"One who goes upon the premises of another in a common interest or to a mutual advantage is there under the implied invitation of the owner."

¶12 See, also, Bennett v. L. & N. R. R. Co., 102 U.S. 577, 26 L. Ed. 235; A., T. & S. F. Ry. v. Jandera, 24 Okla. 106, 104 P. 339; Faurot v. Okla. Wholesale Gro. Co., 21 Okla. 104, 95 P. 463; Dowdv. C. M. & St. P. R. R. Co., 84 Wis. 105, 20 L. R. A. 527; Stansfield v. Chesapeake & P. Telep. Co., 123 Md. 120, 52 L. R. A. (N. S.) 1170, 91 A. 149; and Norris v. Hugh Nawn Cont. Co., 206 Mass. 58, 31 L. R. A. (N. S.) 623, 91 N.E. 886.

¶13 In Texas, O. & E. R. Co. v. McCarroll, 80 Okla. 282, 195 P. 139, it is said:

"Neither sufferance, nor permission nor passive acquiescence is equivalent to an invitation."

¶14 In City of Grandfield v. Hammonds, 100 Okla. 75, 227 P. 140, it is said:

"Without an invitation, express or implied, no duty of active care arises. Neither silence, acquiescence, nor permission, however, standing alone, is sufficient to establish an invitation. A license may thus be created, but not an invitation. The infancy of the party injured does not change the situation."

¶15 See, also, Kithcart v. Feldman, 89 Okla. 276, 215 P. 419, and Branan v. Wimsatt, 298 F. 833.

¶16 Although it is argued that plaintiff, at the time of injury, was an invitee, in the light of the above authorities it is clear that his status is that of a licensee.

¶17 We recognize, without quoting, a great array of authorities from various jurisdictions which hold that a licensee is in no better position than a trespasser, and the property owner owes to him no responsibility except to refrain from wantonly and willfully injuring him; that a licensee takes the premises as he finds them and the property owner is not liable to him for an injury caused by a defect in the premises unless there is shown a willful, wanton, or reckless negligence, or the commission of an overt act of negligence by the property owner or some other person for whose acts the said property owner is responsible.

¶18 Some courts have recognized a substantial difference in the rights of a trespasser and...

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