McCoy v. Cohen

• Decision Date: 23 February 1965
• Docket Number: No. 12310,12310
• Citation: 140 S.E.2d 427,149 W. Va. 197
• Court: West Virginia Supreme Court
• Parties: Guy E. McCOY et al. v. Henry COHEN et al. James H. HALL et al. v. Henry COHEN et al. Fred ARBOGAST et al. v. Henry COHEN et al.

Page 427

140 S.E.2d 427

149 W.Va. 197

Guy E. McCOY et al. v. Henry COHEN et al.

James H. HALL et al. v. Henry COHEN et al.

Fred ARBOGAST et al. v. Henry COHEN et al.

No. 12310.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1964.

Decided Feb. 23, 1965.

Syllabus by the Court

1. 'The test of the relation between one having work done and the workman consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor.' Syllabus, Greaser v. Appaline Oil Company, 109 W.Va. 396, .

2. A fundamental legal principle is that negligence to be actionable must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.

3. Proximate cause is a vital and an essential element of actionable negligence and must be proved to warrant a recovery in an action based on negligence.

4. One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, and the other requisite is that such act or omission did produce the injury.

5. When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties, so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.

Clifford, Jones & Williams, James C. West, Jr., Clarksburg, for appellants.

Herschel Rose, Fairmont, Stathers & Cantrall, Mary Frances Brown, Clarksburg, for appellee Henry Cohen.

Robinson, Stump, Highland & Morgan, James E. McNeer, Thomas E. Morgan, Clarksburg, for appellee Norman C. Slaughter.

Steptoe & Johnson, James M. Guiher, Kingsley R. Smith, Clarksburg, Max D. Rizley, Tulsa, Okl., for Dow Chemical Co.

HAYMOND, Judge:

In these three separate civil actions which involve the same legal questions, instituted in the Circuit Court of Lewis County in October 1962 and January 1963, the plaintiffs in one action, Guy E. McCoy and Aunie McCoy, husband and wife, owners of a parcel of one and one-half acres of land in Hacker's Creek District, Lewis County, improved with a five-room dwelling house occupied by them as a residence; the plaintiffs in another action, James H. Hall and Patricia Ann Hall, husband and wife, owners of a parcel of land containing one and one-half acres, also situate in Hacker's Creek District, Lewis County, improved with a dwelling house occupied by them as a residence; and the plaintiffs in the third action, Fred Arbogast and Helen Arbogast, husband and wife, owners of a parcel of land containing one acre, also situated in Hacker's Creek District, Lewis County, improved with a dwelling house occupied by them as a residence, which parcels are part of a 240 acre tract which is subject to the oil and gas lease involved in this litigation, seek to recover from the defendants in each action, Henry Cohen, Norman C. Slaughter, Dowell Division of Dow Chemical Company, a corporation, and Halliburton Company, a corporation, which during the trial was dismissed from the consolidated actions, damages for the pollution of the fresh water wells of each of the plaintiffs located on their respective residence properties at distances of approximately 270 to 450 feet from a gas well known as Woofter No. 1, which was drilled by the defendant Slaughter on another and separate portion of the 240 acre tract under an oil and gas lease owned by the defendant Cohen but which well was not drilled on any of the lands owned by any of the plaintiffs.

The basis of the claims of the plaintiffs is that the pollution of the fresh water wells of the plaintiffs and the resulting damage to their properties were proximately caused by the negligence of the defendants in drilling, casing, cleaning, swabbing and sealing the Woofter No. 1 gas well on other property near or adjacent to the properties of the plaintiffs.

The actions were consolidated for trial with the understanding that separate verdicts and separate judgments would be entered in each case and certain agreed facts were submitted under a pretrial order entered March 21, 1963. Upon the trial at the March Term 1963 the defendants moved the circuit court for directed verdicts at the conclusions of the evidence introduced by the plaintiffs, which motions were overruled as to all the defendants except the defendant Halliburton Company as to which the motion, but being opposed by the plaintiffs, was sustained. At the conclusion of all the evidence the remaining defendants renewed their motions for directed verdicts which motions were sustained on the grounds that any damage sustained by the plaintiffs was permanent rather than temporary and that the defendants were not guilty of negligence in their operations in the drilling of the gas well which was the proximate cause of the injuries sustained by the plaintiffs.

On April 20, 1963, the circuit court entered judgments in favor of the defendants upon the directed verdicts and by order entered June 17, 1963, overruled the motions of the plaintiffs for a new trial in each of the consolidated actions. From the judgments rendered April 20, 1963, this Court granted these appeals upon the application of the plaintiffs.

The defendant Henry C. Cohen is the owner of the oil and gas lease on the 240 acre tract of land which covers each of the parcels owned by the plaintiffs. He took to part in the drilling operations although he was represented by other persons to kept in touch with him and kept him informed of the situation in connection with the drilling. Sometime in October or November 1960 Cohen met the defendant Norman C. Slaughter at a point on a public road in Lewis County and entered into a verbal agreement with Slaughter, who was an experienced drilling contractor, to drill three wells for Cohen, one of which was the Woofter Well No. 1 involved in this litigation. According to Slaughter, he was to drill the well to and through the Big Injun Sand at the rate of $4.00 per foot and to furnish the rig and the men for the drilling of the well, which included the pulling of the outer casing and the swabbing and the closing of the well. Slaughter directed and supervised his own workmen. He selected them, paid their wages and fixed their working hours. The four and one-half inch casing used in the well was purchased by Cohen but it was installed by Slaughter, the driller.

The defendant Dowell Division of Dow Chemical Company, sometimes referred to as Dowell, was employed by the defendant Cohen to fracture the well, which it did in three separate operations on two occasions on March 31 and April 7, 1961.

The drilling operations began on February 13, 1961 and continued until April 26, 1961, at or about which time the well was properly sealed or 'closed in' to prevent the escape of any gas from the well. The well produced a small quantity of gas, approximately 85,000 cubic feet, but did not produce any oil. The well was drilled to a total depth of 1765 feet on March 24, 1961. In the drilling of the well 205 feet of eight and one-fourth inch pipe and 895 feet of seven and one-fourth inch pipe were used as outside casing, and the inside casing, consisting of 1765 feet of four and one-half inch pipe, extended inside the larger casing from the top to the bottom of the well.

On March 29, 1961, after the four and one-half inch casing had been installed, the well was cemented by Halliburton Company. In this operation a mixture of sixty five sacks of cement was forced downward through the four and one-half inch casing to the bottom of the well and thence upward into the open space between the bore the and the outside of the four and one-half inch casing called the 'annulus.' By this process the casing was cemented solidly for a distance of 700 feet from the bottom of the well to a point about 1050 feet below the surface or top of the casing. Before injecting the cement Halliburton Company circulated the well with fresh water and a 'gel' compound for the purpose of cleaning and sealing the bore hole.

As oil and gas in paying quantities were not found in the Big Injun Sand, Cohen and Slaughter decided to extend the drilling of the well below the Big Injun Sand, which is located approximately 1315 feet below the surface, to and through the Gantz Sand, which is located at a depth below the surface of approximately 1700 feet. The object of the cementing operation was to prevent the fracturing fluid from entering any waters or any sands or zones other than the producing sands involved in the fracturing process.

On March 30, 1961, after the well had been cemented, Slaughter's crew pulled and removed from the well the outside casing consisting of the eight and one-fourth inch pipe and the seven and one-fourth inch pipe.

On March 31, 1961, the well was perforated by Schlumberger Company. This operation consisted in the shooting of holes by special apparatus in a horizontal direction through the four and one-half inch production casing and the surrounding cement at the level of the particular sand to be fractured and at that time the Gantz Sand, which is located at a depth of approximately 1700 feet, was fractured. The fracturing operation was performed by the defendant Dowell. Its purpose was to stimulate the flow of gas or oil from some particular sand into the well and it involved the use of fluids consisting of hydrochloric acid and detergents mixed with quantities of fresh water and sand.

The first fracturing operation began at 4:05 o'clock in the afternoon of March 31, 1961. The required pressure was applied to force the fluids into the Gantz Sand at 4:15 o'clock and the fracturing operation was completed at 4:32 o'clock in the afternoon of the same day. After the fracturing operation on March 31, residual...