Magnolia Petroleum Co. v. Sutton

• Decision Date: 21 April 1953
• Docket Number: No. 35224,35224
• Citation: 208 Okla. 488,257 P.2d 307
• Parties: MAGNOLIA PETROLEUM CO. et al. v. SUTTON.
• Court: Oklahoma Supreme Court

Page 307

257 P.2d 307

208 Okla. 488

MAGNOLIA PETROLEUM CO. et al. v. SUTTON.

No. 35224.

Supreme Court of Oklahoma.

April 21, 1953.

Rehearing Denied May 19, 1953.

Syllabus by the Court.

1. Ordinarily, refusal to declare a mistrial on account of an attorney's improper conduct before a jury is not ground for reversal where objection thereto is made and properly sustained, and it does not appear that the jury was influenced by said conduct. In determining whether or not said conduct had such effect, despite the corrective measures taken, the appellate court may consider the whole record and all of the pertinent facts and circumstances shown therein.

2. In this case where an improper demonstration was attempted and commenced before the jury by an attorney for one of the defendants but it was stopped in an early or preliminary stage by the trial judge who thereafter admonished the jury to disregard what they had seen and heard and that it had 'nothing to do with the case'; Held: It does not appear from an examination of the record that the jury was influenced by said attempted demonstration, remarks and conduct of the attorney, and, under all of the facts and circumstances, the trial court's refusal to declare a mistrial on that ground, was not reversible error.

3. On the basis of the evidence in this action against the owner of an oil and gas lease and a pipe line company on account of a worker's death from an explosion of oil and/or gas fumes occurring while he was working on a pipe running along the top of a battery of oil tanks; Held: The respective questions of said worker's contributory negligence, and, whether negligence on the part of the lease owner and the pipe line company, separately or in combination, caused the explosion, were for determination by the jury, and the trial court committed no error in overruling the oil lease owner's and pipe line company's separate demurrers to the evidence.

4. Instructions must be considered as a whole and construed together, and while a single instruction standing alone may be subject to some criticism, yet, when the instructions, taken together in their entirety, fairly submit the issues to the jury, the judgment of the trial court on the verdict of the jury will not be disturbed. It is not necessary that any particular paragraph of the instructions contain all the law of the case; it is sufficient if, when taken together and considered as a whole, they fairly present the law applicable to the issues in the pleadings upon which competent evidence has been introduced.

5. In an action for damages in causing death by negligence, the law allows nothing more than the pecuniary loss, as measured by pecuniary standard. The extent of the widow's loss from her deceased husband's wages should be measured by his earnings, care, health, beneficent and pecuniary contributions given, or in reasonable expectation of being given to her, measured by a pecuniary standard.

6. When a verdict is attacked on the ground that it is so excessive as to indicate the jury acted under bias, influence, or prejudice, it will not be reversed on that ground unless it appears the jury did not consider the rules of law by which damages are awarded, or it is grossly excessive; however, when the verdict is excessive, on the basis of the evidence, in any amount, the Supreme Court may require as a condition to affirmance of the judgment based thereon, a remittitur of the excessive amount.

Earl A. Brown, Dallas, Tex., and Robert W. Richards, Oklahoma City, for plaintiffs in error.

Gomer Smith and Gomer Smith, Jr., Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

In this action, defendant in error, as plaintiff, obtained a verdict and judgment against plaintiffs in error, as defendants, in the sum of $70,000 for the alleged wrongful death of her husband, Buster Sutton, in an explosion on an oil and gas lease.

The lease belonged to one of the plaintiffs in error, Magnolia Petroleum Company, and Sutton was the employee of Monarch Construction Company, which was engaged under contract with said oil company, to install a battery of four oil field storage tanks on the lease. The tanks were erected in a single file or straight row.

The explosion killed Sutton instantly. Its cause was unknown and how it occurred remained the principal issue throughout the trial. There were various theories, testified to by expert as well as nonexpert witnesses, as to what might have caused it.

It appears that on Saturday, October 16, 1948, or two days before the fatal accident, Sutton, and Monarch's foreman, Charles Leffler, did some work on the tanks but did not connect the two north tanks referred to herein as Tanks No. 1 and 2 with the two south tanks referred to as Tanks No. 3 and 4. While they were there that day, Hoenig Tank Trucks, another independent contractor, hauled in several hundred barrels of crude oil for Magnolia and pumped the oil into Tanks 1 and 2. After that, apparently all workmen left the tank battery until the following Monday, when the Monarch Workmen, including the deceased, and his foreman, Leffler, returned to complete their part of the tank battery installation. Their arrival preceded that of a crew employed by Magnolia Pipe Line Company, whose job was to connect each tank in the battery with said company's pipe line. The latter crew and the Monarch workmen had labored two hours or more there together on their separate assignments in connection with readying the tank battery for operation when the explosion occurred.

At the time of the explosion, the pipe line which was to conduct the future crude oil contents from the tanks for marketing or other uses, was already laying in a shallow open ditch alongside the tank battery and a welder of the pipe line company's crew was engaged in cutting or shortening with an acetylene torch a 'riser' pipe, coming up out of this line to connect it with what we will call a 'spigot', near the base of Tank No. 3. The deceased had been sent to the topside of the tank battery to lubricate the stops or valves on the equalizer or 'overflow' pipe or line, which extended between the tanks near their tops, and was for the purpose of permitting oil to flow over from one tank into the next one when the adjoining one was filled to capacity. He was lubricating the 'stop' valve on the overflow line between Tanks 3 and 4. The explosion blew down only Tank 4, but the impact also unseated Tank 3. The other two tanks were apparently not affected. The testimony is not in agreement as to whether Tanks 3 and 4 were affected simultaneously or successively; and, if successively, which tank--No. 3 or No. 4--felt the impact first.

When this action by Sutton's widow came on for trial before a jury, not only the Magnolia Petroleum Company and the Magnolia Pipe Line Company, but also Monarch Construction Company, its foreman, Charles Leffler, and Hoenig Tank Trucks were parties defendant.

After plaintiff had moved for a dismissal of the action as to Hoenig Tank Trucks, the verdict was against only the two defendants, Magnolia Petroleum Company and Magnolia Pipe Line Company, the jury exonerating the other two.

The Magnolia Companies have appealed from the trial court's order overruling their separate motions for a new trial, filed on the ground, among others, that the trial judge erred in overruling the separate requests they made during the closing arguments that a mistrial be declared. Plaintiff and these defendants will hereinafter be referred to by their trial court designations, except when clarity requires use of their proper names. Other defendants will be designated by name.

At the trial, one of the theories advanced as to the cause of the explosion was that gas or combustible fumes from the oil in Tanks 1 and 2 were ignited by the acetylene torch the pipe line company's welder was using. Defendants' principal theory was that such fumes were set off or ignited by the negligence of the decedent or one of Monarch's other employees near or on top of Tanks 3 and 4. Their counsel now points to such physical facts as the blowing down of Tank 4, while Tank 3 remained standing, testimony that Monarch workmen were seen smoking within three or four minutes of the explosion, that deceased was a cigarette smoker and bits of cigarettes and matches were observed lying near his body after the explosion, and conclusions of experts, as showing that the ignition of the gases must logically have come from some source closer to Tank 4 than the welder working at the base of Tank 3.

The defendants' separate requests of the trial judge to declare a mistrial were directed, not at the conduct of Mr. Gomer Smith, plaintiff's attorney, but at the conduct of Mr. Paul who represented their co-defendant, the Monarch foreman, Charles Leffler, and was also one of the attorneys for the Monarch Company, which had an additional attorney, Mr. Brown. The appealing defendants, Magnolia Petroleum and Magnolia Pipe Line were represented by Mr. Richards and Mr. Garvin. Mr. Paul's conduct is indicated by the following excerpt from his closing argument to the jury:

'* * * The Court has instructed you as a matter of law and as a matter of fact that oil, crude oil is a dangerous thing. We are going to decide just exactly the cause of that explosion out there. I am not going to set a fire here or hurt anyone, you don't have to worry about that. First, tell me if that is gasoline, (handing to the jury a can), I want you and each of you to examine it and tell me if it is gasoline, I am sure each of you say that it is gasoline. I just went down to the filling station and bought one quart of good gasoline, will someone give me a cigarette?'

Following the above remarks, Mr. Richards immediately interposed an objection and made motions on behalf of both of his clients that the court declare a mistrial. The court then excused the jury for the purpose of hearing argument on these motions, and, as...