Magnolia Petroleum Co. v. Witcher

• Decision Date: 17 December 1929
• Docket Number: Case Number: 18800
• Citation: 1929 OK 555,141 Okla. 175,284 P. 297
• Parties: MAGNOLIA PETROLEUM CO. v. WITCHER.
• Court: Oklahoma Supreme Court

1929 OK 555

284 P. 297

141 Okla. 175

MAGNOLIA PETROLEUM CO. v. WITCHER.

Case Number: 18800

Supreme Court of Oklahoma

Decided: December 17, 1929

Syllabus

¶0 1. Oil and Gas--Intent of Statute Requiring Plugging of Abandoned Wells.

That part of section 7970, Comp. Stat. 1921, which provides that when the derrick is removed from around an abandoned oil or gas well, the same shall be plugged at least ten feet below the surface, and the well filled to the surface with such material as will keep it from caving, is not merely a conservation measure, but was intended to afford protection to the public generally.

2. Negligence--Failure to Perform Statutory Duty.

It is well settled that the failure to perform a statutory duty imposed by a valid statute under the police power of the state for the protection of the public, is negligence per se or negligence as a matter of law.

3. Same--Gross Negligence to Leave Abandoned Oil Well Improperly Plugged--That Person Injured Was Technical Trespasser no Defense to Action.

It is gross negligence for a person or corporation, in abandoning an oil or gas well, to leave same open and not properly plugged at the surface. The failure in such case to discharge a manifest duty cannot be excused by the fact that the party injured, himself free from contributory negligence, was a technical trespasser on the premises where the well was drilled, abandoned, and left open.

Commissioners' Opinion, Division No. 2.

Error from District Court, Garvin County; W. G. Long, Judge.

Action by Forest Witcher against the Magnolia Petroleum Company. Judgment for plaintiff, and defendant appeals. Affirmed.

B. B. Blakeney, Hubert Ambrister, and W. R. Wallace, for plaintiff in error.

J. S. Garrison and Yerker E. Taylor, for defendant in error.

HALL, C.

¶1 This was an action for damages for personal injuries. The plaintiff at the time of the injury was a minor of the age of 18 years. The defendant was and is an oil company engaged in the production and manufacture of petroleum products. The defendant was the owner of an oil and gas lease located near the town of Pernell in Garvin county. It had drilled a test well on the premises, and failed to find oil or gas in paying quantities. The defendant partially plugged the well and abandoned the lease. It appears that the top of the hole was left open to a depth of about 200 to 400 feet. The mouth of the well was between 12 and 15 inches in diameter. The well was located on a prairie or open ground, and within 30 or 40 yards of a regular beaten pathway or roadway leading to the town of Pernell. Persons going to this town of Pernell would occasionally and constantly stop at this would-be well and look it over. One man testified that he stopped there nearly every time he went to town. The only protection or guard around the well, or the hole in the ground, at any time was a board resting over it, which was constantly being removed.

¶2 On the day of the injury complained of, plaintiff, a boy 18 years of age, with no knowledge of oil or gas wells, and a companion were en route to this town of Pernell, and stopped by the wayside to give this well an inspection. They dropped some rock or solid pieces of earth in the well, and noted their journey down the hole until the bottom was reached. They could not see, however, what was going on in the well; they therefore lighted the end of a strand of sea-grass rope and lowered it into the well to see what it looked like down below. The result was a terrific explosion, which, considerably, for the time being, emasculated plaintiff's face and did certain permanent injuries to his eyes. Plaintiff brought this action to recover damages against the defendant for leaving this hole unguarded and asked that he be awarded $ 2,990. The jury awarded him the sum of $ 1,250. The defendant appealed.

¶3 The principal contention of plaintiff in error (the defendant in the trial court), is that there was and could be no primary negligence in this case. It contends: (1) That plaintiff was a trespasser and that it owed him no duty except not to wantonly or maliciously injure him; and (2) that plaintiff's injuries, if any, resulted from his own contributory negligence.

¶4 Plaintiff (defendant in error) bottomed his case upon the theory that the defendant, in leaving the well unsubstantially plugged, that is, its failure to plug the well in a substantial manner at least ten feet below the surface and fill such well to the surface with such material, as would prevent the well from caving before final abandonment, constituted a breach of public duty, and that such breach constituted negligence as a matter of law.

¶5 Defendant contends that section 7970, Comp. Stat. 1921, is a conservation statute only; that is, it was enacted to prevent the diffusion of water and salt water into the oil producing sands, and that it is nowise a police regulation or statute created for the benefit of the general public. The statute is lengthy and deals in detail as to the manner and method of plugging abandoned wells. We would be inclined to agree with defendant if the statute did not conclude with the provision as follows:

"And provided, further, that when such lessee or operator removes the derrick from around such wells, he shall plug such wells in some good and substantial manner, at least ten feet below the surface and fill such well from that point to the surface with such material as will prevent the well from caving, before final abandonment."

¶6 It will be thus seen that the statute is not only a conservation statute, but a police regulation as well. So long as the derrick remains over the well or hole, no duty is imposed upon the lessee to plug and fill the top of the well; but as soon as the derrick is removed, the statute provides the well should be plugged to at least ten feet below the surface, and filled with some material which will prevent its caving. Certainly this is not a conservation measure, because the derrick over the hole could serve no useful purpose for conservation, and the shallow layer of earth constituting ten feet of the surface could not operate to conserve oil or gas. It is clear that the Legislature in enacting this law had in mind both a conservation measure (the principal reason for the enactment of the statute) and also a measure for the protection of the public generally.

¶7 The authorities are practically uniform that, as a general rule, the violation of a public duty enjoined by law for the protection of persons and property constitutes negligence per se or negligence as a matter of law. Whitehead Coal Mining Co. v. Pinkston, 71 Okla. 124, 175 P. 364; Midland Oil Co. v. Ball, 115 Okla. 229, 242 P. 161; C., R. I. & P. Ry. Co. v. Pitchford, 44 Okla. 197, 143 P. 1146.

¶8 The standard of duty having been fixed and defined by law, the only question relating to negligence necessary to submit to the jury in this case was the question of contributory negligence of the plaintiff. Under our law, that is always a question for the jury, regardless of the fact that there is no conflict in the testimony tending to establish such contributory negligence. This is the mandate of section 6, art. 23 of the Constitution. St. L. & S. F. Ry. Co. v. Long, 41 Okla. 177, 137 P. 1156, Ann. Cas. 1915C, 432; Dickinson v. Cole, 74 Okla. 79, 177 P. 570, affirmed by the Supreme Court of the United States in C., R. I. & P. Co. v. Cole, Adm'r, 251 U.S. 54, 40 S. Ct. 68. 64 L. Ed. 133.

¶9 Even though said section 7970 of the statutes were not a police regulation imposing a public duty upon the defendant, it would find itself in no different situation. In this connection defendant contends, in addition to plaintiff being a trespasser, that as he was not injured by falling into the well, the proximate cause of his injury was igniting the grass rope and lowering it into the hole. That argument raises the question of contributory negligence, which was a matter for the jury and not for us. Evidently the jury concluded that the plaintiff's act in lowering the ignited rope into the hole was a mere condition and not a contributing cause, under the rules of actionable negligence.

¶10 The contention also raises the question of primary or original negligence of the defendant. In this connection the correct rule for determining the proximate cause in cases of this nature is set forth in the case of Town of Depew v. Kilgore, 117 Okla. 263, 246 P. 606, which, in effect, is that where the defendant is guilty of original negligence, and the evidence tends to show that the original negligence placed in motion the intervening or independent act, which intervening act was the immediate cause of the injury, the defendant will be held liable. This case will be discussed further in succeeding paragraphs of this opinion.

¶11 The analogy between the present case and the case of Whitehead Coal Mining Co. v. Pinkston, supra, is almost exact. In that case the defendant had abandoned a coal mine. The mine entrance was not closed, nor danger or precautionary signals placed at the entrance. A companion of plaintiff's intestate dropped a piece of jewelry into the shaft of the mine, and the deceased, a youth of only 21 years, climbed down the shaft to get the jewelry which lodged upon a cage some 30 or 40 feet below, and was suffocated by poisonous gases contained in the shaft.

¶12 In that case the argument advanced was that:

"He (plaintiff's intestate) was not injured by walking across the grounds, but his injuries were sustained by his deliberate and intentional act of climbing down into a shaft without the knowledge or permission of the defendant. * * * The deceased did not fall into the shaft."

¶13 This court held that the defendant was liable for the death, basing its decision, however, upon section 7559, Comp. Stat. 1921, which is the related statute to section 7970, and directs the closing of the entrance to abandoned mines.

¶14 The fact that plaintiff did not receive his injuries by...