Pennington v. Justiss-Mears Oil Co.

• Decision Date: 15 September 1960
• Docket Number: JUSTISS-MEARS,No. 5059,5059
• Citation: 123 So.2d 625
• Parties: Peggy Morgan PENNINGTON, Ind., etc., Plaintiff-Appellee, v.OIL COMPANY, Inc., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 625

123 So.2d 625

Peggy Morgan PENNINGTON, Ind., etc., Plaintiff-Appellee, v. JUSTISS-MEARS OIL COMPANY, Inc., et al., Defendants-Appellants.

No. 5059.

Court of Appeal of Louisiana, First Circuit.

Sept. 15, 1960.

Rehearing Denied Nov. 2, 1960.

Certiorari Granted Jan. 9, 1961.

Breazeale, Sachse & Wilson, Baton Rouge, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, Gaharan & Richey, Jena, for appellants.

Benton & Moseley, Kizer, Heaton, Craig & Cangelosi, Baton Rouge, for appellee.

Before TATE, MILLER and PUTNAM, JJ.

TATE, Judge.

This is a wrongful death action in which the trial court awarded the plaintiff, the widow of Claude Pennington, Jr., a total of $219,743.45 for the damages sustained by her and her three minor children as a result of Pennington's death. The defendants, the Justiss-Mears Oil Company, Inc. and its liability insurer, appeal; and the plaintiff answers the appeal requesting that the award be increased.

On August 16, 1957, the decedent was struck and killed by the end of a 94-foot stand of drilling pipe which fell out of the side of an open-faced drilling rig being operated by the above-named defendant corporation (hereinafter referred to as 'the defendant'). The pipe had escaped from the control of the defendant's employees who were in the process of drilling an oil well. This test well was what is called a 'slim hole operation', using 2 7/8-inch drill-pipe, which the evidence reveals to be more flexible and limber that the larger (e.g., 3 1/2 or 4 1/2 or larger) drill pipe more often used in normal drilling operations. The difficulty of controlling this more flexible drill pipe was increased, in the operation in question, by the circumstance that the defendant was using it in three-joint lengths (or 'stands'), rather than in shorter stands or which a shorter drilling rig, since due to the length of each stand and the comparative thinness of the drill-pipe each stand was quite limber and had a pronounced bow or bend in its mid-portion when handled vertically.

The plaintiff's chief contentions of negligence are: (a) that the defendant was negligent in failing to have the open-faced derrick equipped with a guard (a 'bellyband' or cable or rope) around its mid-section in order to permit greater control of this slender and flexible pipe and to prevent it from falling from the open side of the drilling derrick; and (b) that the defendant's employees negligently lost control of the drilling pipe which fell and killed young Pennington and/or negligently caused it to fall.

We adopt our learned trial brother's summary of the facts and his conclusions as to liability as follows:

'The derrick had one open side, except for a small platform called a monkey board, which enclosed the open side near the top. There were slots, called fingers, arranged inside this board, and when the pipe was pulled out of the well by the elevator the deck-hand on the ground floor guided the bottom end of the pipe to the spot where the pipe was set for stacking. When the bottom end was so placed, the man on the monkey board released the elevator at the top and pulled (manually and with a loose rope he wrapped around the pipe) the top end of the pipe to be slotted into the fingers. At this well the derrick was high enough to enable the driller to pull three joints of pipe out of the well at one time. For that reason this particular derrick was called a 'thrible' (triple) decker.

'On the occasion in question on August 16, 1957, about the first time to come out of the hole the string of three joints of pipe pulled out measured altogether 94.8 feet long. The monkey board was about 89 feet above the ground floor where the bottom end of the pipe rested. The slim pipe was flexible, and the man on the monkey board had trouble getting the top end pulled into the fingers for racking. The pipe bowed into the closed side of the derrick. When the top and was pulled toward the fingers the bow in the pipe came toward the open side of the derrick and 'fouled' behind a pin which held the upright sections of the derrick in place. The deckhand at the ground floor noted the trouble and used a 24-inch pipe wrench to turn the pipe away from the pin. When he did that, the bow in the pipe came out of the derrick through the open side to the extent that the top end of the pipe went under the monkey board and the pipe fell to the ground.

'Claude B. Pennington, Jr., was at the well site talking to employees of * * * (a chemical analysis unit employed by his father, Dr. Pennington, which maintained a laboratory in a small steel hut at the drilling site about 40 feet north of the drilling rig.) When the alarm was given that the pipe was falling young Pennington attempted to run to safety and had almost cleared the distance to be out of reach of the pipe, but the top end struck him on the head, causing almost instant death. Mr. Pennington was engaged in the oil business to some extent with his father and also as an independent lease broker on his account. He had no financial interest in that drilling project. * * *

'* * * If it be true that 94.8 feet of 2 7/8-inch pipe will not bend of its own weight a sufficient amount to lower the top end some five feet, or enough to come under the monkey board, then it seems reasonable that when the man on the ground floor turned the pipe to let it pass the pin against which the pipe had caught about the middle of the derrick, the pipe then continued to bend outward through the open side of the derrick with sufficient momentum to extend the bend beyond its normal bow. It was gross negligence of the deck man to risk causing the pipe to come out of the derrick, which the pipe was trying to do when it hit the pin. If by lack of experience with slim pipe this man did not expect that pipe to do that, then it was gross negligence to employ such a man in that position. This man should have known slim pipe potentialities. The driller testified that his crew had never used pipe of 2 7/8-inch diameter before.

' To my mind, the most glaring element of gross negligence in this case is demonstrated by the absence of the belly-board, or some type of guard at the middle of the derrick and on the open side. Any sort of strong material would do--a cable, a rope, a pipe or iron bar. Some witnesses explained that one could be made on the site. Mr. Randall, the driller (for defendant), testified that (prior to the accident) they discussed installing a belly-board on that job * * * Tr. 149, 150. (See also Tr. 139--141) He had never drilled with 2 7/8-inch pipe pulled out of the well in 'thribles' (three joints at a time). They (the defendant's employees) installed one (a 'belly band') almost immediately after the accident. The company officials and some defense witnesses said that they had never seen a pipe fall out of the derrick. * * *

'The testimony of plaintiff's rebuttal witnesses, Mr. Hoffman, Mr. Cornell and Mr. Bush, beginning at page 840 of the transcript is too positive, definite and convincing to ignore. * * * They are all experienced, independent operators and two of them came up all the way from roughneck to owners and operators of drilling rigs in their own rights. In short, they say they have seen all kinds of pipe fall out of derricks and they would not consider the use of slim pipe of the kind used by this defendant without a belly and or board on the derrick.

'Therefore, I find and hold that the contention of the defense in this case, that this defendant drilling company in drilling this oil well was not obligated to take precautions against something they say could not have been anticipated or that experienced men could have no reason to expect this to happen and that such a pipe had never been known to fall out of a derrick before, is not supported by a preponderance of the evidence. * * *'

I.

In urging reversal, the defendants-appellants principally contend that under all Foreseeable circumstances it was a physical impossibility for the drill-pipe, 94.8 in length, to have bowed or bent sufficiently so as to escape from under the monkey-board (the lower edge of which was about 88 above the drilling platform upon which the bottom of the pipe rested) and to fall out of the drilling rig and injure a bystander. Therefore, it is urged, the defendant's employees were not negligent in failing to have some type of a guard, such as a 'bellyband', around the mid-portion of the derrick to prevent the drill-pipe from escaping and, also it is argued, that the defendant's employee was not negligent in so twisting the pipe as to cause it to escape from under the monkey-board.

The appellants additionally contend that the decedent assumed the risk and/or was contributorily negligent by being in such close proximity to the hazardous operation of drilling an oil well. And they finally contend, alternatively, that the judgment should be reversed and the case remanded to receive certain evidence tendered to prove that the handling of 2 7/8 drill-pipe was not essentially different from or more hazardous than the use of other types of drill-pipe and that the procedures used in the present case were in accord with the standard safety practices of the oil industry.

The appellants rely heavily upon the expert testimony of an eminent physicist, based upon his mathematically exact calculations, that various (95 , 94 , 93 , 92 , 91 ) lengths of 2 7/8 drill-pipe would not bend or bow 'of its own weight' (Tr. 761, 765) and 'without the intervention of third force' (Tr. 764, see 765, 766) sufficiently so as to fall below the floor of a monkey-board about 88 feet above the ground. (For instance, a 94 length of pipe would have a 10.23 deflection from the straight at its maximum bow, but its top end would still be 4.2 above the floor of a monkey-board 87 7 above the ground level, according to these calculations.) The substance of the defendant's contention that it was...