Manhattan Oil Co. v. Mosby

• Decision Date: 12 September 1934
• Docket Number: No. 9847.,9847.
• Citation: 72 F.2d 840
• Parties: MANHATTAN OIL CO. et al. v. MOSBY.
• Court: U.S. Court of Appeals — Eighth Circuit

72 F.2d 840 (1934)

MANHATTAN OIL CO. et al. v. MOSBY.^*

No. 9847.

Circuit Court of Appeals, Eighth Circuit.

September 12, 1934.

Henry L. Jost, of Kansas City, Mo. (H. H. Booth, of Kansas City, Mo., and R. H. Hudson, R. E. Cullison, and C. C. Julien, all of Bartlesville, Okl., on the brief), for appellants.

Byron Spencer, of Kansas City, Mo. (H. M. Langworthy, Frank H. Terrell, and Charles B. Turney, all of Kansas City, Mo., on the brief), for appellee.

Before SANBORN and BOOTH, Circuit Judges, and MUNGER, District Judge.

SANBORN, Circuit Judge.

During the spring and summer of 1926, George A. Mosby, the appellee, who will be referred to as plaintiff, was fattening a large number of cattle upon his ranch in Greenwood county, Kan. The appellants, Manhattan Oil Company, Phillips Petroleum Company, and Empire Gas & Fuel Company, were drilling for and producing oil on land adjacent to and east of the Mosby ranch and on a small portion of the ranch itself. The drainage from the lands upon which the wells were located was toward the west branch of the Fall river, which traverses the Mosby ranch and which formed the plaintiff's sole source of water supply for his cattle. Mosby brought suit against the oil companies, claiming that they wrongfully permitted salt water and oil to drain from their locations across his lands and into his stream, thus polluting the water and rendering it unfit for his cattle to drink; and that, as a result of such pollution, his cattle did not fatten, as they otherwise would have done, and he was put to additional expense for feed and water. He asked for damages for the loss of his anticipated profits, and the added expenses to which he was put, because of the pollution, in providing food and water. Issues were joined, and the case was tried. Upon the first trial the lower court directed a verdict in favor of the defendants on the ground of a misjoinder of parties and causes of action, holding that the liability of the defendants was several and not joint. This court reversed 52 F.(2d) 364, 368, 77 A. L. R. 1099, holding that "the evidence disclosed an accrued cause of action, under the law of Kansas, against the defendants jointly, and that such cause of action was maintainable in the federal court in Missouri." It also held that the fact that the Phillips Petroleum Company was a lessee of the plaintiff would not prevent a recovery. The decision amounted to a holding that, upon the record made in the first trial, the defendants were not entitled to a directed verdict for any of the reasons urged by them.

The case has now been retried, and the result of the second trial was a $17,000 verdict for the plaintiff. From the judgment entered thereon the defendants have appealed.

A great many errors are assigned. They relate to the following matters:

(1) The jurisdiction of the court;

(2) The sufficiency of the plaintiff's petition;

(3) The statute of limitations;

(4) The admission of certain evidence introduced by the plaintiff;

(5) The rejection of certain evidence offered by the defendants;

(6) The sufficiency of the evidence to support the verdict;

(7) The right of the plaintiff to recover from the Phillips Petroleum Company, his lessee;

(8) The right of the plaintiff to aggregate his damages against the defendants jointly;

(9) The instructions of the court to the jury;

(10) The validity of the verdict.

1. The defendants insist that this action is for trespass on real property and therefore a local action triable only in Kansas. While the plaintiff alleges that the salt water injured his land for pasturage, he asks for damages only for the injury done to his cattle and for the additional expense which he incurred for feed and water occasioned by the presence of salt in the water of his stream. The cattle were no part of the real estate; they did not run with the land. They were the subject of the injury. While the place and means of injury were local, the subject of the injury was transitory. The cattle were susceptible to injury wherever located. Hence the action was transitory and not local. Gunther v. Dranbauer, 86 Md. 1, 38 A. 33, 34; Mason v. Warner, 31 Mo. 508, 510, 511; Jacobus v. Colgate, 217 N. Y. 235, 111 N. E. 837, 841, Ann. Cas. 1917E, 369; Potomac Milling & Ice Co. v. Baltimore & O. R. Co. (D. C.) 217 F. 665; Mattix v. Swepston, 127 Tenn. 693, 155 S. W. 928. Under the defendants' theory, if one of the plaintiff's children had been poisoned by drinking the water of the stream, the action for such injury would be one for damage to the real estate, a manifest absurdity.

2. The Kansas Revised Statutes 1923, 55 — 121, provide: "It shall be unlawful for any person, having possession or control of any well drilled, or being drilled for oil or gas, either as contractor, owner, lessee, agent or manager, or in any other capacity, to permit salt water, oil or refuse from any such well, to escape upon the ground and flow away from the immediate vicinity of such well, and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof: Provided, however, That this act shall not be construed to apply to the escape of salt water, oil or refuse because of circumstances beyond the control of the person in the possession or control of such well and under circumstances which could not have been reasonably anticipated and guarded against." The defendants contend that, since the petition fails to negative the effect of the proviso, namely, that the escape of the salt water and oil was due to circumstances beyond the control of the defendants, it fails to state a cause of action.

The purpose of the petition was to advise the defendants upon what grounds the plaintiff claimed their liability to him rested, so that they might intelligently defend his suit. That they were fully advised at all times, there can be no doubt. Their answers and their evidence show that they were in no way misled or taken by surprise. It is perhaps not important whether the plaintiff alleged that the escape of salt water was due to circumstances within the defendants' control, or whether they alleged as a matter of defense that it was due to circumstances beyond their control. However, it is plain that the statute laid down a general rule that salt water was not to be permitted to escape. The proviso merely created an exception to the rule. The plaintiff alleged a violation of the duty imposed by the statute. It was not incumbent upon him to allege that the defendants did not come within its exception. That was clearly a matter of defense. 49 C. J. 153, § 169; United States v. Cook, 17 Wall. 168, 175, 21 L. Ed. 538; Grand Trunk Ry. Co. v. United States (C. C. A. 7) 229 F. 116, 119; Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.(2d) 190, 200; City of Kansas City v. Garnier, 57 Kan. 412, 46 P. 707, 708; State v. Buis, 83 Kan. 273, 111 P. 189, 190; State v. Belle Springs Creamery Co., 83 Kan. 389, 111 P. 474, 475, L. R. A. 1915D, 515; King v. Wilson, 95 Kan. 390, 148 P. 752, 753.

3. Under the Revised Statutes of Kansas 1923, 60 — 306, and Revised Statutes of Missouri 1929, § 869 (Mo. St. Ann. § 869, p. 1158), the plaintiff was limited to two years for the bringing of his action. He discovered his cause of action about June 25, 1926. He brought suit about April 15, 1927. The second amended petition was filed April 16, 1929. The defendants contend that no cause of action was stated until the filing of the second amended petition, because up to that time there was no charge that any negligent or wrongful act of the defendants caused the injuries complained of. They also contend that if a cause of action was stated by that petition, it took the addition of the word "concurrently," on June 1, 1929, to make it a joint cause of action. If their contention that the statute of limitations had not been tolled prior to April 16, 1929, is correct, the plaintiff's right to maintain his action had expired when he filed his second amended petition. The original petition alleged that the defendants permitted salt water and crude oil to escape and pollute the plaintiff's stream, and that his loss and damage were caused thereby. The plaintiff did not therein allege that the conduct of the defendants was wrongful or that they acted concurrently, nor did he allege any duty imposed by a statute of Kansas. The defendants removed the case to the federal court. On December 12, 1927, the plaintiff filed his first amended petition. In it he added an allegation that he first discovered the pollution of his stream on or about June 25, 1926. He amended his claim with respect to the amount of his damages. He did not expressly assert that the acts of the defendants were wrongful or concurrent. On April 16, 1929, he first alleged that the conduct of the defendants was wrongful, and on June 1, 1929, he first alleged that they acted concurrently.

Manifestly, if a cause of action is actually barred by the statute of limitations it cannot be resurrected by inserting it, through amendment, into a petition which states an entirely different cause of action. It is also true that if the facts upon which an asserted liability rests are so inadequately stated in a petition that the defendants cannot tell upon what grounds or upon what state of facts their liability rests, it will not toll the statute. Defects in a pleading which states the essential facts and is sufficient notice of the plaintiff's claim and the factual basis of it, even though it may be subject to demurrer, will toll the statute. "Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied." New York...