Kill v. Summitt Drilling Co.

• Decision Date: 28 July 1931
• Docket Number: Case Number: 20495
• Citation: 1931 OK 486,153 Okla. 197,5 P.2d 346
• Parties: KILL v. SUMMITT DRILLING CO.
• Court: Oklahoma Supreme Court

1931 OK 486

5 P.2d 346

153 Okla. 197

KILL v. SUMMITT DRILLING CO.

Case Number: 20495

Supreme Court of Oklahoma

Decided: July 28, 1931

Syllabus

¶0 Death--Action for Negligent Death--Demurrer to Plaintiff's Evidence Held Properly Sustained.

Action of lower court in taking case from jury is affirmed.

Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by Vesta Kill, for herself and for her minor children, against the Summitt Drilling Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Davidson & Williams, for plaintiff in error.

N. A. Gibson, A. B. Honnold, George C. Abernathy, and West, Gibson, Sherman, Davidson & Hull, for defendant in error.

KORNEGAY, J.

¶1 This action originated in the district court of Pottawatomie county by the filing of a petition on February 25, 1928, on behalf of Vesta Kill, the widow, and the minor children of herself and John N. Kill, her husband, to recover damages for his death, alleged to have occurred on the 28th of December, 1927, while he was engaged in work as a driller on behalf of the defendant company on an oil and gas well in Pottawatomie county, Okla.

¶2 There was a charge that the atmosphere had become heavily saturated with oil and gas, and especially gas, in the vicinity of the well, arising from the fact that the air was moisture laden, and on December 28, 1928, there was a flow of oil and gas therefrom, which caught on fire and exploded, and that the catching of the gas and oil on fire was brought about by the negligence of the defendant, the first particular negligence being that the boiler, by which the drilling machinery was operated, was in too close proximity to the well, that it was approximately 50 to 75 feet from the well. The charge is that when the pay sand was reached, and before drilling in, it was the duty of the defendant to remove or set the boiler back a safe distance from the well in order to avoid the danger arising from the fires in the boiler. The distance required is not set out in the petition.

¶3 The second particular negligence was that the defendant knew that the air for a considerable distance around the well was heavily laden with oil and gas, and was of great danger to all persons in and about the well, and that the defendant did not put out the fire in the boiler, nor in any wise control or render safe the flow of oil and gas. There was a further statement that at the time of the explosion, resulting in the burning to death of the husband and father, gas and oil, and especially gas, was pouring in large quantities from the well and impregnating all the air at the well and near the well and in the vicinity of the well with oil and gas. There was a further charge that it was the duty of the defendant to have turned off the fire in the boiler and to have cooled off the boiler when the gas and oil began to flow from the well "at the time indicated at the time of the accident."

¶4 There was a further statement that there were 15 or 20 large bricks in the boiler that were red hot at the time the gas and oil caught fire. The plaintiff further says that the oil and gas that began to flow immediately prior to the explosion saturated the air near the well. She further charges that it was the duty of the defendant to have turned out the fire before the oil and gas began to flow, and cooled off the bricks so that they would not be hot enough to set fire to the gas.

¶5 A specific allegation of negligence is as follows:

"She says that the defendant was guilty of gross negligence in that they did not turn out the fire in the boiler nor did they cool the bricks in the boiler."

¶6 The plaintiff says that said escaping gas and oil, and especially gas, caught fire from the boiler, and the explosion followed as a result of it. She avers that the defendant was guilty of carelessness and negligence in that they did not furnish her husband a safe place in which to work, and the place was unsafe for the reasons hereinabove indicated. There were further allegations to show the expectancy of the deceased, and the family relations, and the lack of finances, alleging that the explosion occurred on the 28th of December, 1927, and that the deceased died on the 30th of December, 1927. There was a prayer for $ 75,000 actual damages, and $ 25,000 punitive damages.

¶7 An answer was filed admitting the relationship between the plaintiffs and the deceased, and that the deceased was employed as a driller, and his death. There was a denial of any negligence or wrongful act. There was a further charge to the effect that the deceased was the driller in charge of the drilling and of all the operations about the well at the time of the injury complained of which are alleged to have resulted in death. That he was a vice principal and that it was his duty to supervise and superintend the work and to take all the steps necessary to protect himself and the other men engaged at and about the drilling of the well. There was a further statement that if there was any negligence, it was the negligence of the deceased and was not chargeable to or attributable to the defendant. There was a further statement that John N. Kill was experienced in the drilling of oil and gas wells, and familiar with all the dangers thereto, and that he knowingly assumed each and every risk attendant upon the drilling of said well. There was a general denial.

¶8 A reply was filed by the plaintiff denying each and every allegation of the defendant's answer except such as admitted allegations of the petition.

¶9 With the issues so made, plaintiff made an opening statement contending that the boiler was too close to the well and that there should have been some means there to put out the fire, and the further contention that the bricks were a "live flame, so to speak," and the boiler was still hot and that the oil and gas caught from it, and that there should have been water or a steam pipe to put the fire out.

¶10 The defendant below made an opening statement to the effect that on the admitted facts there should be no verdict for the plaintiff. There was a statement that the boiler had been moved back 75 feet, and was approximately 150 feet in accordance with the custom of the field, and this was a proper and safe distance under the experience of men who have devoted their entire life in drilling oil wells in Oklahoma and other fields. The term "towers" was defined, and it was explained that the driller was the boss of the job during the time he was on. It was claimed that the deceased was an experienced man and had had long experience as a tool dresser before he became a driller. He was considered by the employers as the very best of men, and knew all about what should be done and knew how to take care of himself and the job. That he was working with a man by the name of McGee, who was a tool dresser. There was a further statement that there had not been any appreciable flow of gas or oil from the well for 24 hours before the accident occurred. That the casing crew was putting down a casing on the inside of the 8-inch casing preparatory to drilling through to a deeper depth to what they considered to be the oil producing sand. That while they were putting in a braden head, the explosion occurred the parties engaged being a roust-about of the Prairie Oil & Gas Company and the driller and the tool dresser. There was a claim that the gas came up suddenly and the driller told the tool dresser to go down and turn out the gas in the boiler. That fearing that there might be some break or short in the electric wiring, the tool dresser went down to turn off the generator. There was a further claim that the deceased and Galey were working at the braden head, while McGee went down to turn off the generator. There was a further statement that it was the custom in the field to have a bucket of water for the purpose of cooling down the brick and creating a steam in the boiler. That there was a bucket of water there for that purpose. There was a further claim that the men were experienced and took their chances and suffered the consequences. After this opening, the testimony began.

¶11 At the conclusion of the evidence on the part of the plaintiff, a demurrer was sustained to plaintiff's testimony after argument, and cause dismissed at cost of plaintiff, followed by motion for new trial, its overruling and the case being brought here. We have examined, therefore, the entire evidence, and compared it with the statements and arguments in the briefs. From the evidence, it reasonably appears that the explosion started in the fire box of the boiler. As to the exact cause, it is a matter largely of conjecture, as between superheated brick, a hot boiler, or a possible flame left by reason of failure to completely turn off the gas, though the parties evidently tried the case on the supposition of the hot boiler and bricks causing the gas to ignite.

¶12 The first witness was R. J. McGee, the coworker with the deceased, and the only person with the deceased on the ground at the time of the accident, that was in the employ of defendant in error. Both the driller and his helper, the tool dresser, McGee, were men of large experience in oil and gas well work, and were thoroughly familiar with conditions in the field when the accident occurred. They had been working for six days together on the well, running tower from 12 noon to midnight. They had known each other for four months. The tool dresser McGee, testified from pages 27 to 58 (C.-M.). Alvin Galey, a pumper of the Prairie Oil & Gas Company, testified from pages 60 to 74. Frank Hull, a member of the Independent Casing Crew, testified, pages 79 to 87. Glen E. Cole, a driller, testified from page 87 to page 95. Joel A. Wolfe, a stockholder in defendant company, testified from page 98 to 103. Frank Hull again testified at page 104. At this stage a demurrer to the evidence was interposed, but the case was reopened for further testimony (C.-M. 107). Mrs....