Scurlock Oil Co. v. Roberts

• Decision Date: 06 August 1963
• Docket Number: No. 7495,7495
• Citation: 370 S.W.2d 755
• Parties: SCURLOCK OIL COMPANY, Appellant, v. Forrest E. ROBERTS, Appellee.
• Court: Texas Court of Appeals

Page 755

370 S.W.2d 755

SCURLOCK OIL COMPANY, Appellant, v.Forrest E. ROBERTS, Appellee.

No. 7495.

Court of Civil Appeals of Texas, Texarkana.

Aug. 6, 1963.

Ruff Wall, Fred Whitaker, Carthage, for appellant.

Law Offices of Tom Bankhead, Carthage, for appellee.

CHADICK, Chief Justice.

This is an action for damage to land caused by negligent failure to prevent crude petroleum from leaking out of a pipeline.A judgment awarding plaintiff $2,400.00 costs, etc., is affirmed.

In conformity with the plaintiff's pleadings the trial court submitted special issues to determine the fact of alleged negligent omissions of the pipeline operator, which issue the jury answered in the affirmative and found the omissions to be the proximate cause of the plaintiff's damage.These issues are quoted, to-wit:

(No. 2).'Do you find from a preponderance of the evidence that the defendant, Scurlock Oil Company, failed to maintain its pipeline so as to prevent such oil leaking and escaping onto plaintiff's land after November, 1958?

(No. 5).'Do you find from a preponderance of the evidence that the defendant, Scurlock oil Company, failed to provide adequate pipe to prevent the leaking and escaping of oil onto plaintiff's land after November, 1958?

(No. 8).'Do you find from a preponderance of the evidence that the defendant, Scurlock Oil Company, failed to repair its pipeline so as to prevent such oil leaking and escaping onto plaintiff's land after November, 1958?'

The jury also found in separate issues, (No. 1) that oil leaked and escaped from the pipeline onto the plaintiff's land after November, 1958, (No. 11) that oil leaked and escaped from the pipeline and polluted a lake, and (No. 12) the entire tract of land was damaged by pollution of the lake.

Though salt water, rather than crude petroleum, is the polluting agent in Turner v. Big Lake Oil Company, 128 Tex. 155, 96 S.W.2d 221;General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668, andBrown v. Lundell, 162 Tex. 84, 344 S.W.2d 863, a principle pronounced in the first case and reaffirmed in the succeeding cases is controlling in the determination of liability in this case.A rule embodying this principle may be synthesized in terms of crude oil as follows: The escape of crude petroleum from a pipeline will not lay the pipeline operator liable for damages proximately caused by the escaping oil unless the operator negligently causes or permits the oil to leak.

The Supreme Court's opinion in the Turner v. Big Lake Oil Company case quotes 1 Thompson on Negligence, Sec. 694 et seq., with apparent approval.In that text the author uses an artificial body of water in illustrating the principle above discussed.In Sec. 706he says: '* * * It follows, therefore that if a dam breaks away, to the injury of property below, the owner will not be liable unless the person injured can show negligence; and if it appears in proof that the dam was well and properly built, upon a proper model, he will not be liable merely from the fact that it gave way; but otherwise, if it broke away in consequence of having been improperly constructed, or maintained in unsafe condition.'Then is Sec. 707 it is said: '* * * For this rule of ordinary care exacts here, as in other cases, a degree of vigilance, attention, and skill in proportion to the probabilities of danger.In an action for damages caused by the breaking away of a dam, it will not do for the owner to say that he built it strong enough to resist ordinary freshets; he must build it strong enough to resist those extraordinary freshets which sometimes occur, and which are therefor reasonably to be anticipated.'By transposition of water and dam to oil and pipeline it may be said that the pipeline operator transporting crude oil is under a duty to use ordinary care to prevent its escape and damage to others.The care required is commensurate with the oil's harm potential.

The appellant in this court, Scurlock Oil Company, attacks the jury's affirmative answers to issues 2, 5, and 8, initially quoted, as being without evidentiary support, and as being against the overwhelming weight and preponderance of the evidence.In reviewing a no evidence point, the evidence and legitimate inferences from it must be considered in their most favorable aspect, disregrading unfavorable evidence.Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696;38 Texas LawRev. 361.While review of an overwhelming weight and preponderance point requires of this court a consideration of all the evidence and determination of its weight and preponderance.In Re Kings Estate(King v. King), 150 Tex. 662, 244 S.W.2d 660.

On an 800 acre farm in Panola County, Forrest E. Roberts, plaintiff in the trial court and appellee here, and his wife raise cattle and engage in associated agricultural endeavors.More than fifty years before the trial of this suit a pipeline right-of-way was procured and an eight inch diameter pipeline, now owned by Scurlock Oil Company, was constructed across the farm.The line is beneath the ground surface and runs from southwest to northeast, and at one point crosses the southeast corner of a seven acre lack constructed long after the line was laid; for some distance it is in the lake's watershed and the lake dam covers a short length of it.Transportation of oil under a pressure of from 200 to 250 lbs. per cubic inch is the sole use made of the line.Approximately two feet of the line was exposed when the lake was drained, in an area six or eight feet north of the dam normally covered byd water when the lake is filled.The dam is across a slight draw and lengthwise lies generally east-west.The land slopes gently downward from south to north in the lake's watershed and the dam is placed to collect surface waters flowing to it from a northerly direction.

An oil scum formed on the water surface of the lake in the summer of 1959, and when discovered the fish in the lake were dead or dying.The lake dam was cut on July 4 that year, and the water released to allow the bed to dry.The next summer, August, 1960, a bulldozer was employed in an attempt to deepen the lake.While operating the dozer near the pipeline in the dry lake bed petroleum saturated earth at a depth of approximately two to three feet was turned up.Because of the danger from the oil's volatile fumes the deepening operation was discontinued and the pipeline operator notified of the saturated earth.The presence of quantities of fresh oil was found.Pools of oil formed in the bulldozer tracks in the dry lake bed.The only known source of crude petroleum in the lake's vicinity was the pipeline operated by the defendant.

A...