Pure Oil Co. v. Quarles
| Decision Date | 21 May 1935 |
| Docket Number | 24807. |
| Citation | 47 P.2d 124,173 Okla. 153,1935 OK 575 |
| Parties | PURE OIL CO. et al. v. QUARLES et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 18, 1935.
Application for Leave to File Second Petition for Rehearing Denied July 9, 1935.
Syllabus by the Court.
In an action to recover damages alleged to have been caused by the pollution of a stream supplying stock water in a pasture by deposit of salt water from oil and gas wells whereby the lessee in possession of such pasture lands lost the benefits of a contract he claims to have had with a third party for the sale of the use of said pasture and certain hay and feed it is error to submit to the jury the question of whether or not there was in fact a contract for the sale of the hay and feed, where there is no competent evidence tending to establish the contract as to the sale of the hay and feed.
Appeal from District Court, Osage County; Jesse J. Worten, Judge.
Action by J. J. Quarles and others against the Pure Oil Company and others. Judgment for plaintiffs, and defendants appeal.
Judgment reversed, and cause remanded for a new trial.
Alvin Richards, of Tulsa, Hamilton & Howard, of Pawhuska, and E. H Chandler, Summers Hardy, and Robert L. Imler, all of Tulsa for plaintiffs in error.
McCoy Craig & Pearson, of Pawhuska, for defendants in error.
This is an appeal from a judgment in favor of defendants in error, herein referred to as plaintiffs, and against plaintiffs in error, in an action for damages for wrongful pollution of stock water supply in certain pasture lands, which plaintiff claimed to have had under lease, whereby plaintiffs assert they were deprived of the benefit of a contract which they had with one Mark Bozarth to sublease, or sell the use of, said pasture lands, together with certain hay and other feed. Verdict was for plaintiffs for actual and exemplary damages. The exemplary damages allowed by the verdict was for $1,000. On motion for new trial the court ordered plaintiffs to remit $750 of the amount allowed as exemplary damages, and that in case they refused so to do a new trial would be granted.
Plaintiffs excepted to the order, but filed a remittitur in said sum. They filed a cross-petition in error because of this order.
The substance of plaintiffs' petition is that they had under lease for the last four months of 1930, and the year 1931, a large tract of land in Osage county, comprising some 2,960 acres, known as the Bennett pasture; that a part of said lands they held under oral lease or agreement with the owners thereof, or their lessees, and the remainder they held under written leases with the owners thereof. That some time in the summer of 1930, plaintiff entered into an oral contract with Mark Bozarth for the renting of said lands for the fall of 1930, and the year 1931, for pasturing and feeding cattle, and for the sale of certain hay and other feed which plaintiffs then owned, for the aggregate sum of $5,600; that defendants were the owners of, and were operating certain oil and gas wells on, certain lands adjacent to the Bennett pasture; that about September 1, 1930, and after the alleged contract between plaintiffs and Bozarth, defendants wrongfully, unlawfully, willfully, deliberately, and in wanton and reckless disregard of plaintiff's rights, and in violation of section 7969, C. O. S. 1921, caused or permitted salt water and other deleterious substances and waste matter to escape from their oil and gas mining operations, and flow over the surface and into a branch of stream running in or through their pasture so as to pollute the supply of stock water in said pasture lands, and that as a result thereof Bozarth declined to carry out his agreement with plaintiff, whereby plaintiffs lost the benefit of their contract with Bozarth, and were unable to rent said pasture to others, or sell their said hay or feed, except that they did obtain some $300 from the sale of said hay and feed, all to plaintiffs' damage in the sum of $5,300.
The verdict upon which judgment was entered as to actual damages was for $3,950.
Defendants first contend that the court erred in giving instruction No. 7, which in substance told the jury that in case the issues were found for the plaintiffs, they would be entitled to such an amount as the jury might find from the evidence that plaintiffs had lost as a proximate result of the contract between plaintiffs and Bozarth not being carried out by Bozarth, in case the jury should find there was such a contract.
Defendants assert that said instruction did not submit to the jury any question of special damages, and for that reason did not submit the issue made by the second amended petition upon which the case was tried, but departed from both the pleadings and proof and submitted the question of general damages, and was therefore error.
There is no merit in the contention. This instruction must be considered in connection with the other instructions. The instructions as a whole submit only the question of special damages, and clearly told the jury that plaintiffs were entitled to recover only such actual damages as proximately resulted from the failure of Bozarth to carry out the contract to rent the pasture and buy the feed, and that only in case the jury should find that the sole cause of Bozarth's refusal to carry out such contract was the pollution of the stock water in the pasture by defendants.
It is next contended that the court erred in submitting to the jury the question of whether or not there was a contract between plaintiffs and Mark Bozarth for the rental or sublease of the so-called Bennett pasture.
In this there was no error. While the evidence of the contract is not as clear as it might have been, plaintiff Quarles did testify relative to his agreement with Bozarth.
"By the Court:
Q. What were the words that you used and the words that he used as nearly as you can remember, with reference to the price to be paid? A. The price I made on him was a dollar an acre for the pasture, ten dollars a ton for the hay, and eight dollars per acre for the feed. There was no objection, Mr. Bozarth said he would take the pasture at a dollar an acre, and he would-he thought the price of the feed was too much. * * *
A. On that my recollection about it is that we had several conversations about it, and he said he would go down and look at it. Afterwards he came back and said that he would take it if he could get the cattle, afterwards he said that he would take it.
Q. Do you know about when he told you that he would take it Mr. Quarles? A.
I know that he told me that he would take it."
That was sufficient to justify the court in submitting the question to the jury so far as the pasture is concerned.
After the demurrer to plaintiff's evidence was overruled, defendants called Bozarth as a witness and he, in effect corroborated the statement of Quarles, though he did admit that he had on a former occasion denied that there was an agreement between himself and Quarles as to the pasture land.
Possibly it may be true that there was no such binding contract as could have been enforced by plaintiffs as against Bozarth, but Bozarth testified that he was willing to carry out his agreement as to the pasture, and would have carried it out except for the pollution of the water which occurred afterwards.
It is next contended that the court erred in submitting to the jury the question of the right of plaintiffs to recover on the item of loss of sale of the hay and feed to Bozarth.
In this there is merit.
There is no evidence in the record that there ever was a contract between plaintiffs and Bozarth for the sale of the hay and feed. The only competent evidence relative to any agreement for the sale of the hay and feed was the testimony of...
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