Porter v. South Penn Oil Co.

• Decision Date: 16 February 1943
• Docket Number: 9389.
• Parties: PORTER v. SOUTH PENN OIL CO. et al.
• Court: West Virginia Supreme Court

24 S.E.2d 330

125 W.Va. 361

PORTER v. SOUTH PENN OIL CO. et al.

No. 9389.

Supreme Court of Appeals of West Virginia.

February 16, 1943

W F. Damron, of Logan, and Lilly & Lilly, of Charleston for plaintiff in error.

Smith & Smith, of Hamlin, and Kemble White, Anthony F. McCue and Harold M. Garrett, all of Clarksburg, for defendant in error.

FOX Judge.

On October 25, 1938, Price Montgomery, an employee of the South Penn Oil Company, committed what the evidence discloses to be an unprovoked and vicious assault upon the plaintiff, Cliffie Porter. Porter instituted his action at law in the Circuit Court of Lincoln County against the South Penn Oil Company and Price Montgomery to recover damages resulting from such assault. The case was tried before a jury, and at the completion of the plaintiff's evidence, the defendant, South Penn Oil Company, moved the court to direct a verdict in its favor. This motion was sustained, a verdict returned for said defendant, and judgment entered in its favor. To this action of the court plaintiff prosecutes this writ of error.

The facts are not in dispute, and it is assumed that the action of the court was based upon its belief that if the case were permitted to go to the jury upon the plaintiff's evidence, the same would not justify a verdict

for the plaintiff, and if such a verdict were returned, the same would have to be set aside. This, as we understand, is the proper test of the correctness of the court's action in the premises.

The plaintiff was in possession of two tracts of land which he had leased from the owner, on one or more of which tracts the South Penn Oil Company had drilled wells which were producing either oil or gas. It was necessary to pump the oil wells, and Montgomery was employed by the oil company for that purpose. In going to and from the wells, Montgomery passed through fences between the tracts of land leased by the plaintiff and adjoining properties. At certain points, and at one point in particular, the fence could be opened by laying down the bars or rails that were fastened by wires, and the evidence is that Montgomery's custom was to open up these fences, and pass through without restoring them to their usual position. To use a country expression, "he failed to lay up the bars". The effect of his conduct was to leave open gaps in the fences through which stock could pass and from which damage was likely to result, not only to Porter, but to adjoining landowners. About a week before the assault, the plaintiff met Montgomery, and asked who was going to be responsible for stock getting out, to which Montgomery replied he did not know. The plaintiff then stated: "I will go to the South Penn and see. You work for the South Penn, I will go to the South Penn and see who is responsible for it." On the day of the assault, and prior thereto, Montgomery met Forest Porter, a son of the plaintiff, and the son states that Montgomery asked him why his dad was following him around with a shotgun; that he told him that he didn't know that his dad was following him around with a shotgun, and that Montgomery stated that he wanted to know what his (Porter's) dad was mad at him about, and that he told him "he wasn't mad at him in person, he was mad because he was leaving the fence down and letting the cattle get out", and that Montgomery said that "him and the South Penn Oil Company had a right in there, to go any place they wanted to." He further says: "I told him he wasn't mad at him at all, he was mad because that him, that Price Montgomery and the South Penn Oil Company was leaving the fence down causing the cattle to get out. And he called dad a son-of-a-bitch and said he was going to beat his face in. ***." Chilton Porter, another son of the plaintiff, testified that on one occasion his mother told Price Montgomery "I would like for you to put the fence up when you go up through *** the cattle is getting out and going on other people's stuff"; he said "To hell with the cattle. *** The South Penn Oil Company has got that up there, and I have got a right to go up there any time I want to, and do anything I want to." And, Mrs. Porter testifying as to the same conversation, states: "I said, 'Mr. Montgomery, I want you to quit leaving fences down and turning our cattle out into everything', and he says, 'To hell with the cattle.' He says, 'Me and the South Penn has got more right in there than you have.' That is what he said back to me." This conversation was some two or three weeks prior to the assault. Immediately preceding the assault Montgomery had been engaged in pumping an oil well located on land occupied by the plaintiff. After completing this particular task, and on leaving the well, he met the plaintiff within a short distance. Very little, if any, conversation passed between them, and without provocation, Montgomery, who was armed with a pistol, used the same in striking the plaintiff about the head and face, inflicting severe injuries. There is no evidence that the oil company had any knowledge that Montgomery went about his work armed. On the evidence and circumstances outlined above, the plaintiff sought a recovery against the South Penn Oil Company.

It is admitted that at the time of the assault Montgomery was in the employ of...