Mid-Co Casoline Co. v. Back

• Decision Date: 31 July 1923
• Docket Number: Case Number: 12005
• Parties: MID-CO CASOLINE CO. v. BACK.
• Court: Oklahoma Supreme Court

1923 OK 583

217 P. 1041

95 Okla. 29

MID-CO CASOLINE CO. v. BACK.

Case Number: 12005

Supreme Court of Oklahoma

Decided: July 31, 1923

Syllabus

¶0 1. Appeal and Error--Questions of Fact--Verdict.

In a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.

2. Same -- Damages to Land from Crude Oil.

Record examined, and held, there is competent evidence reasonably tending to support the verdict of the jury.

3. Damages -- Damage to Realty--Measure --Instructions.

Although the source of plaintiff's damages may be susceptible of remedy or abatement, a requested instruction limiting the amount of the plaintiff's recovery to such damage as has accrued on account of the impaired or lost use of his property up to the time of the suit is properly refused by the trial court in the absence of any evidence that the injury complained of is susceptible of remedy or abatement.

4. Evidence--Oral Admissions by Attorney at Trial.

An oral admission of a material fact made by an attorney in reply to a question of the court during trial, if distinct and formal, and made for the purpose of waiving some portion of the plaintiff's cause of action, is a solemn admission and conclusive upon the party making such admission. Where, however, the so-called admission is not distinct and formal, but equivocal and of doubtful meaning, and where there immediately follows the making of the so-called admission, the further statement of counsel which conflicts with said admission and the further statement that he relies on the theory of his petition, held, said admission was made improvidently and by mistake, and the trial court did not err in permitting the attorney to withdraw same.

Error from District Court, Noble County; J. W. Bird, Judge.

Action by Joseph W. Back against the Mid-Co Gasoline Company, a corporation, for damages. Judgment for plaintiff, and defendant brings error. Affirmed.

Ligon & Fair and W. M. Bowles for plaintiff in error.

P. W. Cress, for defendant in error.

MASON, J.

¶1 In this action the defendant in error, hereinafter called the plaintiff, recovered a judgment in the court below against the plaintiff in error, hereinafter called the defendant, for damages to his land, resulting from the carelessness and negligence of the defendant in permitting crude petroleum to escape and overflow the lands of the plaintiff.

¶2 For reversal, the plaintiff in error has assigned several specifications of error, only three of which we will consider, for the reason that the others are not presented in the brief of plaintiff in error and have been abandoned.

¶3 It is first contended by the plaintiff in error that neither the land nor the trees in question were damaged, and the verdict of the jury is contrary to the evidence. The evidence in the case discloses substantially the following state of facts:

¶4 That the plaintiff was the owner of a tract of land with trees and alfalfa crop growing thereon, and that the defendant owned certain oil tanks located on an adjoining farm to the north of and higher than that of the plaintiff's; that sometime during the month of August, 1918, the defendant permitted said tanks to overflow, and that, by reason thereof, a large amount of crude oil ran down the hill from said tanks over the lands of the plaintiff and into a branch or a small stream on the land of the plaintiff; that thereafter, during the month of December, a great snow fell and when the same began to melt a portion of the lands of the plaintiff were flooded.

¶5 The testimony of the witnesses on behalf of the plaintiff was to the effect that the oil which had escaped from the tanks of the defendant, and which was still in the branch and lower portions of the lands of the plaintiff, was spread over said lands by the high water caused by the melting snow and caused the damage as alleged by the plaintiff.

¶6 The witness, Carl Wells, on behalf of plaintiff, testified that about nine acres of alfalfa land had been killed by the oil. The plaintiff testified that previous to said overflow of his alfalfa land he had a good stand of alfalfa, and that the average yield was four to five tons per acre; that during the high waters the oil-charged water had covered his bottom land, and that about five acres of said alfalfa was killed at once, and that later, by reason thereof, more of it was ruined, and that at the time of the trial about 15 acres were practically "gone," and at that time the evidence of the oil was still on the land and that no vegetation would grow thereon.

¶7 Ray Henry, another witness for the plaintiff, who had cut the alfalfa on two different occasions, testified that the stand of alfalfa prior to the overflow had been fine; that afterwards there was so much oil on the land that "he wouldn't want to make a living farming that kind of ground."

¶8 Harry Wilkins testified that previous to the flood the plaintiff had a fine stand of alfalfa and that after the overflow of said lands he had seen the oil on the dead stocks of the alfalfa and on the ground, and that, there were some chunks of oil large enough that they could have been used to grease a wagon.

¶9 George Foster and J. E. Waltermire, two witnesses for the defendant, testified that shortly after the big snow, above referred to, they visited the land in question and made a thorough investigation and found that the plaintiff had sustained no damages either to the land or the growing alfalfa. There were several other witnesses who testified for each of the parties to substantially the same effect as the evidence above set forth.

¶10 Although there was a sharp conflict in the evidence and the contentions of the parties, a question of fact was presented for the determination of the jury, as to whether or not the plaintiff had suffered any damages and whether the negligence of the defendant was responsible therefor. The jury returned a general verdict in favor of the plaintiff, and we are of the opinion that there was ample evidence tending to support the verdict.

¶11 The rule is well established in this jurisdiction that, in a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal. Norris v. Hibler, 83 Okla. 197, 201 P. 495; Sand Springs Railway Co. v. Smith, 84 Okla. 211, 203 P. 207; People's National Bank of Kingfisher v. Rickords, 85 Okla. 9, 204 P. 130; Lawton Refining Co. v. Hollister, 86 Okla. 13, 205 P. 506.

¶12 Plaintiff in error next contends that the trial court erred in refusing to give the jury the following instruction requested by the defendant:

"You are instructed that from the evidence in this case plaintiff has suffered no permanent injury or damage to his land as claimed in petition, on account of the fact that the source, if any, of damages has been abated and said plaintiff would only be entitled to the impaired or lost use of his land up to the time of the commencement of this action."

¶13 In support of this contention, plaintiff in error calls attention to the fact that the tanks of the defendant were never permitted to overflow but one time, and that the source of damages, if any, suffered by the plaintiff was abated and had been abated and never occurred but the one time alleged in the plaintiff's petition.

¶14 It is further contended that, this being true, the requested instruction should have been given by the trial court, following this court in the case of City of Cushing v. High, 73 Okla. 151, 175 P. 229, wherein the court says:

"In this jurisdiction it well settled that where the injury complained of is susceptible of remedy or abatement by the expenditure of money or labor, the owner is entitled to recover only such damages as have accrued on account of the impaired or lost use of his property up to the time of the suit."

¶15 Counsel also cite the case of Ponca Refining Co. v. Smith, 73 Okla. 6, 174 P. 268, wherein this court used the following language:

"For negligent injuries to realty which result from a cause susceptible of remedy or abatement, the owner is entitled to recover therefor only such damage as had accrued on account of the impaired or lost use of his property up to the time of the commencement of his action."

¶16 We have carefully examined these cases and admit that the rules therein announced are correct as applied to the facts in those cases, but the facts in the case at bar are so dissimilar from the facts in those cases that the rules therein announced are not applicable to the instant case. The case of Ponca Refining Co. v. Smith, supra, was a suit for damages caused by the refinery allowing hot water, refuse, and crude oil to run into a creek which drained Smith's land and thereby contaminated the water so it was unfit for stock water. The injury in that case, or the contamination of the water, would cease soon after the abatement of the cause, or the discharge of the hot...