Prest-O-Lite Co. v. Howery

• Decision Date: 30 October 1934
• Docket Number: Case Number: 23330
• Citation: Prest-O-Lite Co. v. Howery, 37 P.2d 303, 169 Okla. 408, 1934 OK 606 (Okla. 1934)
• Parties: PREST-O-LITE CO., Inc., v. HOWERY.
• Court: Oklahoma Supreme Court

1934 OK 606

37 P.2d 303

169 Okla. 408

PREST-O-LITE CO., Inc., v. HOWERY.

Case Number: 23330

Supreme Court of Oklahoma

Decided: October 30, 1934

Syllabus

¶0 1. Negligence--Proof of Causal Connection Between Negligence and Injury.

In order to sustain a recovery in an action based on negligence there must be a causal connection between the negligence averred and the injury received, and such causal connection cannot be established by basing inference upon inference, or presumption upon presumption.

2. Same--Proximate Cause as Question of Fact or of Law.

As a general rule the proximate cause of an injury in negligence cases is a question of fact for the jury, but where all of the evidence favorable to plaintiff, together with all inferences drawn therefrom, is insufficient to point out clearly a causal connection between the alleged negligence of defendant and plaintiff's injury, and where no element of willful and intentional wrong is present, it becomes a matter of law for determination by the court.

3. Trial--Instructions Required to Submit Respective Theories of Parties.

Instructions to the jury should be framed upon the issues made by the pleadings and should submit the respective theories of the parties as shown by their evidence.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by C. M. Howery against the PrestO-Lite Company, Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Davidson & Williams. for plaintiff in error.

Franklin H. Griggs, for defendant in error.

OSBORN, J.

¶1 C. M. Howery, plaintiff, sued the Prest-O-Lite Company, defendant, in the district court of Tulsa county, for damages arising from the pollution of a stream flowing through plaintiff's premises. The cause was tried to a jury and a verdict was rendered for plaintiff for $ 1,500. From a judgment thereon, defendant has appealed.

¶2 Plaintiff's petition alleges that he is the owner of a small tract of land in the city of Tulsa; that the defendant operates a carbide plant a short distance west of plaintiff's premises, adjacent to a creek which flows through plaintiff's premises; that defendant negligently allowed certain poisonous and deleterious substances of phenolthalin methyl orange alkalinity, impregnated with lime and various chlorides, sulphates, and carbonates and insoluble silicates, with iron and aluminum, all in combinations harmful and dangerous to animal life and vegetation, to flow into said creek; that plaintiff kept livestock and poultry on his premises which had access to the waters of the creek, and, as a result of such pollution, he sustained the following losses: 2,000 chickens of the value of $ 1.25 each; 200 ducks of the value of $ 1.75 each; a brood sow of the value of $ 100, and 4 shoats of the value of $ 25. that two cows lost their calves and have been further damaged and depreciated in value. The answer was a general denial.

¶3 The petition was filed July 28, 1930. It was agreed that plaintiff could recover only for injuries sustained within two years prior to said date. Plaintiff testified that during the two years' time approximately 2,000 of his chickens died. On cross-examination he testified as follows:

"Q. Now, tell the jury how these chickens were affected? A. Well, sir, they just--some of them just fall over dead, and some of them would droop around for a few days, and they would just get so they couldn't walk, they would just set down and they never could get up any more. Q. And they would die, how many a day? A. Well. I have seen as high as 15 to 25. Q. You would find them dead in the morning when you went out? A. Yes, sir. Q. You think you averaged about 15 to 25 chickens that died every 24 hours, is that right? A. Yes, sir."

¶4 Plaintiff also testified that a brood sow and four shoats died, and that two cows lost their calves and were further depreciated and damaged in value. He also testified that the fowls and stock had access to the water in the creek, that he did not attempt to prevent them from drinking creek water, since at the time he did not know that there was anything wrong with the water. He further testified that he did not know why the fowls and stock died; that none of the chickens were examined to determine the cause of their death, but that he did call a veterinarian to see his cow when it was sick. The veterinarian testified that the cow was suffering from enteritis or inflammation of the bowels, and he assumed that drinking the water from the creek was the cause of the trouble, since he could find no other cause therefor. He did not make an analysis of the water, but placed his hand in the creek water and noticed that it caused a "puckery" feeling.

¶5 Defendant's evidence was to the effect that the component elements and the process of manufacture of acetylene gas, which was manufactured at the plant in question, had been the same for 15 years. In November, 1930, and in January, 1931, defendants caused water from the stream to be analyzed, and it was shown that there was nothing in the water of a deleterious or harmful nature to animal life. It was further shown that the plant life growing in the stream and on the banks had not been affected in any manner.

¶6 It was conceded by plaintiff that no damage had been sustained by him subsequent to July, 1930, and from that time there were no poisonous, harmful or deleterious substances in the water.

¶7 It is noted that no proof was offered by plaintiff to show that the various substances mentioned in his petition, or any other poisonous or deleterious substances, were in the water during the time the damages were incurred. It is sought to sustain the recovery herein upon the hypotheses, first, that the water contained poisonous or deleterious substances, and, second, that the animals and fowls died as a result of drinking the water. Neither hypothesis is satisfactorily established by the evidence.

¶8 In the case of Schaff v. Ferry, 105 Okla. 259, 232 P. 407, it is said:

"* * * It is competent to prove negligence as any other fact. by circumstantial evidence, but in such case, the: circumstances must be such as reasonably to lead up to and establish the fact sought to be proved. M. K. & T. Ry. Co. v. Greenwood (Tex. Civ. App.) 89 S.W. 810. It is elementary law that an inference of fact cannot be based on another inference, that a presumption cannot be based on another presumption. No inference of fact or of law is reliable that is drawn from premises which are uncertain. Whenever circumstantial evidence is

...