Phillips Petroleum Co. v. Hardee

• Decision Date: 22 May 1951
• Docket Number: No. 13370.,13370.
• Citation: 189 F.2d 205
• Parties: PHILLIPS PETROLEUM CO. et al. v. HARDEE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

189 F.2d 205 (1951)

PHILLIPS PETROLEUM CO. et al. v. HARDEE et al.

No. 13370.

United States Court of Appeals Fifth Circuit.

May 22, 1951.

John A. Hickman, Thos. F. Porter, Lake Charles, La., Charles F. Bailey, Lafayette, La., Ben C. Dawkins, Jr., Shreveport, La., for appellants.

Stuart S. Kay, DeRidder, La., for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

HUTCHESON, Chief Judge.

The suit, brought by rice farmers against four oil companies operating producing wells and one pipe line company in the vicinity of plaintiffs' lands, was for damages to plaintiffs' crops and land resulting from the pollution and contamination of the waters of Hickory Creek which were used by them for irrigation.

The claim in general was: that in July, 1948, Hickory Creek, which is normally a fresh water creek fed by springs and periodical rains, received into it a discharge of salt water and other contaminating and injurious substances; that these defendants were responsible for the contamination in that they did, during the months of June and July, 1948, and for several months preceding, discharge, and permit to escape, into the drains, ditches, gullies, branches, and other tributaries which drained their respective areas of operation, large quantities of chemicals, mud, acid, oil, and salt water, which substances were discharged and permitted to drain into Hickory Creek and cause its contamination and pollution; and that plaintiffs, in complete ignorance of the contamination of Hickory Creek, pumped the polluted water upon their crops of young rice, with the result, the injury and damage sued for.

Each defendant filed a separate answer, denying generally and specifically the charges of contamination and pollution and its liability or responsibility therefor.

After the jury was impaneled, and before the introduction of evidence had begun, the court, no one objecting to it, but plaintiff stating, and the judge agreeing, that the matter was still to be argued out, stated to the jury that the suit was not one charging concerted action or conspiracy on the part of the defendants, and, therefore, seeking a solidary judgment; it was one against each of the five companies separately and apart;¹ and, thereupon, the cause proceeded to trial and was tried on that theory.

A great deal of evidence was offered upon the issues of, the cause and the extent of the damages claimed.²

Plaintiff offered no direct evidence showing that waste or contamination was discharged into Hickory Creek or its tributaries in the critical period in July, or, indeed from the time the pumping began in June.

The evidence, completely circumstantial throughout, consisted: of testimony that the salt water disposal systems were not always escape proof; of testimony of escapes or discharges from the salt water wells or systems, at times too remote from the critical period for the particular water, testified to as escaping, to have caused the damage; and generally of testimony as to drainage conditions in the oil fields, including testimony that salt crystals had been seen in dry gullies near the disposal systems and in drains in and leading to the oil fields; of testimony that the only source from which the contamination could have come was the oil fields; that at times other than in June and July, salt water had been seen escaping or being discharged from the disposal systems of one company or another, so that a reasonable inference from the facts was that the salt water causing the contamination must have escaped at some time or other from some of the properties or disposal systems of the defendants.

After motions for directed verdict filed by plaintiffs and by each defendant had been denied and full arguments had, and plaintiffs and defendants had submitted special requests,³ the case was submitted to the jury on a general charge which, modifying plaintiffs' requested charge No. 3, note 3, supra, by inserting "the one knowing the other was doing it and vice versa", and refusing plaintiffs' requested charge No. 4, note 3, supra, modifying defendants' requested charge No. 2, note 3, supra, by inserting in it, "if they did not know of each other's doings", gave defendants' requested charges, Nos. 3, 4, and 7, note 3, supra, and in addition gave a charge⁴ of the court's own, submitting a theory of the defendants conniving and working together, in which event they would be solidarily liable, and it told the jury that, in this event, each defendant would be liable to pay the plaintiffs directly its fractional share of the total.

The jury was instructed that it could find for either plaintiffs or defendants, and for its use in connection with its verdict, if it was for plaintiffs, the jury was provided with several forms of verdicts to choose from.⁵

Thereupon, after the parties had stated their objections to the charge, including on plaintiffs' part an objection to the various forms of verdict, the jury retired and, after deliberation, returned into court a verdict as to each Phillips, Shell and General Crude, in form as follows:

"We, the jury, find that the negligence of ................... by itself was sufficient to cause the injury to the plaintiff in the amount set forth. $16,078.243"

and as to Barnsdall Oil Co., in the same form with, however the sum of $3630.571.

None of the other form verdicts were used, except form "j", and this was filled in with a finding as to the damage to each plaintiff.

Upon receipt of the verdict, the court advised the jury that the verdict would not be received because it did not respond to the charge, in that, as to Barnsdall Oil, it did not find it responsible by itself for the whole damage, nor did it find that there was any concert of action; and that they must either find Barnsdall responsible for the whole damage or not responsible at all.

The jury was further advised that since it had found in its verdict as to the amounts each plaintiff should recover, the special verdicts against each company should not name any particular amount because the amounts found for the plaintiffs would be equally divided among those found responsible.

Advised on their request, whether it was possible to find one company less negligent and liable for damages than the others, that it was not so possible, and then advised that "you can hold each one liable by itself if you think it was sufficiently negligent to cause it all", and "as you increase the number it divides the burden of the companies", and "if you reduce it to two companies, each of the two companies would pay half of the total amount", the jury was then furnished with a new set of form verdicts and sent back.

Shortly thereafter the jury returned with their new set of verdicts. These, finding the same amount for each plaintiff as before, found Phillips, Shell and General Crude each by itself guilty of negligence sufficient to cause the injury to the plaintiffs, and Barnsdall Pipe Line and Barnsdall Oil not liable.

Each of the defendants, appealing from the judgment, is here insisting, as its main point: that the evidence was insufficient to support the verdict; and, in addition: (1) that the plaintiffs did not have the legal right, during the year 1948, to irrigate their rice crops, nor did this defendant have any legal duty toward plaintiffs to maintain the water of the creek for rice irrigation or other purposes; and (2) that the court erred in charging the jury that defendants could be found solidarily liable as joint tort-feasors, even though they acted separately, if they knew of each other's doings in the field.

Disposing first of the last two points, it is sufficient to say of them that point No. 1, as to the legal right of plaintiffs, was not taken sufficiently below to permit of its being urged here for the first time, no special charge was requested on it, and the only statement of it as one of the grounds for the instructed verdict did not make the point which is sought to be made here, that the plaintiffs were no riparian owners. We, therefore, pass the point without determining it.

As to point No. 2, it is sufficient now to say, as will be shown further on in the opinion, that the error in this charge was not against defendants but against plaintiffs.

On their main point, the insufficiency of the evidence, each appellant insists that the evidence does not point with sufficient compelling force to it as the sufficient cause for the whole damages sued for, and does not, therefore, measure up to the degree of certainty required in Louisiana in a circumstantial evidence case. Iterating and reiterating this point, each appellant insists that, assuming that the proof is sufficient to establish that the pollution came from the oil fields, it is not of such nature to support the finding on which the judgment rests that each of the defendants cast was by itself responsible for the whole damage and, the proof failing to do this, the judgment may not stand.

Pointing to the fact that Barnsdall had fourteen wells in the Longdale field where it operated, and that Crude, Phillips, and Shell together had only three or four in the Bear Creek field, they insist that it is impossible from this evidence to say more than by guess what part of the contamination came from one or the other of the defendants.

Phillips, on its part, insists that there is no evidence of negligence on its part, none as to any waste by flowage or leakage, as to it, except the one instance, in January, 1949, six months after the occurrence, and that the evidence was wholly insufficient to support the verdict as to it. Shell and General Crude, in their turn, point out: that the evidence, as to them, while sufficient to support a finding that some salt water escaped from their disposal wells in March, the proof establishes, and it is admitted by all, that this waste did not cause the damage; that the creek was clean and clear in June; and that there is no proof of...