Minnetonka Oil Co. v. Haviland

• Decision Date: 25 January 1916
• Docket Number: 5542.
• Citation: 155 P. 217,55 Okla. 43,1916 OK 103
• Parties: MINNETONKA OIL CO. v. HAVILAND ET AL.
• Court: Oklahoma Supreme Court

155 P. 217

55 Okla. 43, 1916 OK 103

MINNETONKA OIL CO. v. HAVILAND ET AL.

No. 5542.

Supreme Court of Oklahoma

January 25, 1916

Syllabus by the Court.

Where the sufficiency of a bill of particulars is challenged for the first time by an objection to the introduction of evidence thereunder at the trial, upon appeal from a justice of the peace court, it is not error to overrule such objection unless there is a total failure to allege some matter essential to the relief sought, even though the allegations contained in the bill of particulars are incomplete, indefinite, or conclusions of law.

Any error in sustaining objections to evidence is rendered harmless, if the witnesses at the trial subsequently testify to the facts sought to be elicited by the questions to which objections were sustained.

A lessee under an oil and gas lease, who contracts with an independent contractor for the drilling of a well upon the leased premises, cannot thereby escape liability to the lessor for damage to the property of the lessor by the negligence of such independent contractor in drilling such well.

It is not reversible error to refuse requested instructions substantially covered by a charge which fairly states the law applicable to the issues of the case.

Instructions examined, and held to be free from error.

Commissioners' Opinion, Division No. 1. Error from County Court, Pawnee County; Geo. E. Merrick, Judge.

Action by Mattie Haviland and another against the Minnetonka Oil Company, a corporation. Judgment for plaintiffs, and defendant brings error. Affirmed.

Dillard & Blake, of Tulsa, for plaintiff in error.

Hayes & Cleeton, of Cleveland, for defendants in error.

RUMMONS C.

This action was commenced in a justice of the peace court in Pawnee county by the defendants in error, hereinafter styled "plaintiffs," against the plaintiff in error hereinafter styled "defendant," to recover damages for injuries to a peach orchard on the premises of plaintiff resulting from alleged negligence of the defendant in drilling an oil well on said premises. Judgment was entered for the plaintiffs by default, and defendant appealed to the county court of Pawnee county. The case was there tried to a jury, resulting in a verdict and judgment for plaintiffs to reverse which defendant prosecutes this appeal.

The first error complained of by defendant is the overruling by the trial court of the objection of defendant to the introduction of any evidence on the part of plaintiffs for the reason that the bill of particulars failed to state a cause of action in favor of the plaintiffs and against the defendant. We do not think this assignment is well taken, for the reason that this action was instituted in a justice of the peace court, where the rules of pleading are considerably relaxed, and no attack was made upon the bill of particulars until the commencement of the trial. The rule is well settled in this state that a challenge to the sufficiency of a petition, made for the first time by an objection to the introduction of the evidence, is not favored, and that such objection should be overruled unless there is a total failure to allege matters essential to the relief sought, and should seldom, if ever be sustained when the allegations are simply incomplete indefinite, or conclusions of law. Abbott v. Dingus, 44 Okl. 567, 145 P. 365, and cases there cited. We have examined the bill of particulars complained of. It is open to some objection as to being indefinite and uncertain and pleading conclusions of law, yet we think it sufficiently states a cause of action to withstand an attack by objection to the introduction of evidence.

It is next contended that the court erred in sustaining objections to questions propounded by counsel for defendant upon cross-examination of the witnesses of plaintiffs and to questions propounded by counsel for defendant to its own witnesses. It is first insisted that the court erred in sustaining an objection to questions by counsel for defendant, when cross-examining one of the plaintiffs, which were intended to elicit the fact that the stock which injured the orchard of plaintiffs were owned by the plaintiffs. Any error there may have been in sustaining objections to these questions is rendered harmless by the fact that, on the same page of the record, it appears that this witness testified, without objection, that the stock doing damage were owned by plaintiffs; and it further appears in the evidence of the husband of this witness that these cattle belonged to the plaintiffs. So that the defendant had before the jury the evidence which he sought to elicit by the questions to which objections were sustained, and whether or not the court erred in sustaining such objection is purely an academic question.

The defendant sought to show by cross-examination of the witnesses of plaintiffs and upon direct examination of his own witnesses that the oil well on the premises of plaintiffs was not drilled in by defendant, but by an independent contractor. Objections were sustained by the court to questions seeking to elicit evidence to establish this fact and objections were sustained to the offer of the defendant to prove that the work was done by an independent contractor. Defendant complains most seriously of these rulings of the trial court. It seems that the plaintiffs were the owners of a tract of land in Pawnee county upon which the defendant held an oil and gas lease. By the terms of the lease the defendant was precluded from drilling within 300 feet of any buildings on the premises. It was desired to drill a well near the southeast corner of said tract, where the residence and buildings of the plaintiffs were located, and plaintiffs and the defendant entered into an agreement by which the terms of the original lease prohibiting the drilling of a well within 300 feet of any building was waived by the plaintiffs, and it was agreed that the defendant should drill a well near the southeast corner of said tract of land. When the well was drilled, it was located just north of the peach orchard, the damage to which is the occasion of this suit, and the engine, boiler, and toolhouse were located in the peach orchard. The evidence of plaintiffs tended to show that those drilling in the well tore down the fence surrounding the peach orchard and which separated it from the corral of plaintiffs; that plaintiffs caused such fences to be repaired and put in a gate for the use of the drillers; but that such gate was continually left open and such fence again torn down; and that, by reason thereof, the stock got into the orchard and damaged it. The evidence of plaintiffs also tended to show that several trees in the orchard were killed by the heat and steam from the boiler used in drilling in the well, and that other trees were damaged by teams and wagons used and driven...