Scurlock Oil Company v. Harrell

• Decision Date: 25 June 1969
• Docket Number: No. 11689,11689
• Citation: 443 S.W.2d 334
• Parties: SCURLOCK OIL COMPANY, Appellant, v. Mrs. N. C. HARRELL et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 334

443 S.W.2d 334

SCURLOCK OIL COMPANY, Appellant, v.Mrs. N. C. HARRELL et al., Appellees.

No. 11689.

Court of Civil Appeals of Texas Austin.

June 25, 1969.

Rehearing Denied July 16, 1969.

Don Johnson, Coleman, Everett James Grindstaff, Ballinger, Clark, Thomas, Harris, Denius & Winters, Barry K. Bishop, Mary Joe Carroll, Austin, for appellant.

E. B. Underwood, Ballinger, for appellees.

PHILLIPS, Chief Justice.

Appellees instituted this suit seeking recovery for permanent damages to their respective tracts of land and water caused by oil leakage from Appellant's pipeline and, in addition, sought an injunction to prohibit Appellant from using the line.

Two contiguous tracts of land are involved, one known as the Hilliard 306 acre tract and the other as the Harrell 160 acre tract.The Hilliard tract is the only tract crossed by the pipeline in question.

In conformity with jury findings, the trial court entered a judgment awarding to the respective owners of each tract damages of $20 an acre for the total number of acres in each tract.This award was based on the decrease in market value of their respective tracts .Appellee Hilliard was awarded an additional sum of $400 for sixteen sheep that the jury found had died from drinking oil.The court then permanently enjoined Appellant from pumping or flowing oil through its existing line of pipe which traverses the Hilliard tract.

It is from this judgment that Appellant has perfected its appeal to this Court.

We reverse and remand this judgment in part and affirm in part.In addition, we dissolve the injunction ordered by the Court.

It is uncontroverted that some oil has escaped from Appellant's pipeline and damaged Appellee Hilliard's land, creek and sheep to some extent.It is also uncontroverted that some oil floated down Quarry Creek which flows through the Harrell tract with the possibility of some damage thereto.

Appellant is before this Court with sixteen points of error the first four, briefed together, are that there is either no evidence, or insufficient evidence, to support the jury's finding of negligence on the part of Appellant; and that there is either no evidence or insufficient evidence that an act of negligence on the part of Appellant was a proximate cause of damage suffered by Appellees.

We overrule these points.

Appellees alleged various acts of negligence on the part of Appellant, namely that it failed to properly inspect the pipeline; failed to properly maintain and repair the line; failed to replace such rotted and deteriorated pipe with new pipe; failed to prevent the escape and leakage of oil therefrom.

The jury found that Appellant'was negligent in permitting oil to escape from its pipeline into the Hilliard land * * *' It also found that such negligence was the proximate cause of injury to the Hilliard tract and also the proximate cause of the injury to the Harrell land.

The line was installed in December of 1960 or January, 1961.All new four-inch pipe of the type customarily used for oil pipelines in the area, was used.Prior to the beginning of operations the line was walked and inspected for any default in welding that might have occurred.The line was then covered so that it was buried to a depth of two to two and a half feet.The normal useful life of such a pipeline is 12 to 15 years.

Other leaks over the past several years had occurred on the line across the Hilliard tract but payment in full had been made for those and Mr. Hilliard had executed a release for all damage which had occurred prior to July 3, 1967.It is not unusual for leaks to occur occasionally in an oil pipeline and a leak does not necessarily indicate that a whole line has deteriorated.

The evidence further developed the fact that salt water on the outside of a line is the most normal cause for leaks.After the leakage which resulted in the present litigation occurred, it was established that there was an extremely high chloride content in the water in the area.

The evidence discloses, however, that Appellee Hilliard had called leaks to Appellant's attention on several instances, over a period of a year or so.He testified that the leaks continued and were never completely stopped.

Hilliard further testified that 'I even suggested they needed a new line over there.That was ate up with rust.You could hit it with a hammer and a bunch of rust would fall off and usually other leaks would occur.'

After the two settlements for the leaks described above Appellee Hilliard testified 'I don't think it's ever been stopped completely, because every time it comes a rain on these two creeks that fork together there would always be oil, a certain amount of oil.I questioned Henderson (Appellant's employee) about it.He seemed to think it was caused from seep.Since they plugged this line I haven't been bothered.'

Other leaks were reported to Appellant and were fixed.Some of the testimony concerning the condition of Appellant's line elicited from the Appellee Hilliard is as follows:

'Q Did you ever see them fix one of those leaks?

A Yes, several of them.

Q What method did they go through when they fixed them?

A They dug this hole to the pipeline, taken a clamp--I don't know what kind of clamp they call it--and clamped this leak off.

Q Did they ever dig up and down the pipeline a little ways to see what the pipeline looked like?

A Very little.

Q Did you ever see them take a hammer and tap it to make that rust fall off?

A I seen another leak come in when they hit it.In fact, the day before they plugged this line this backhole machine, Mr. Cook was out there, and he stripped back about 50, 60 feet, approximately, and there were four leaks occur in that length.

Q They backed the machine up and come down hard and knocked the fool out of the pipeline?

A I wouldn't think so.They would see a sign of oil before they would get to the spot.

Q And knock a hole in it and put a clamp on it and move up a little and knock a hole and put a clamp on?

A I wouldn't say knock a hole.You can see a sign of oil all along where they were stripping it.

Q Let me see, another question, that it hit the pipeline with force with that big dipper on the back of the backhole?

A Yes.

Q It may necessarily knock a hole in it there but up the line here and there it would break off somewhere else, corroded area, and might not make a hole, that vibration?

A If the ground was open I think it would, underneath, back up in the line, I think.

Q They did that about four times, didn't they?

A That's as far as I know.Henderson let it go.

Q Then what did he say?

A He said, 'we are going to plug this, going to quit.'

Q Shut her down?

A Yes.

Q Did he shut her down?

A He did the next day, I believe it was.'

Appellant cites usTurner v. Big Lake Oil Company, 96 S.W.2d 221(Tex.1936) and the more recent case of Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410(1954), as authority that mere fact that oil escaped from a pipeline with attendant damage is insufficient to establish liability on behalf of the pipeline company.These cases, among others, are discussed with relationship to the doctrine of Res ipsa loquitur in Texas in Tort Liability and the Oil and Gas Industry, Keeton and Jones, Texas Law Review 35, 1 (1956).The Court denied a recovery in Warren Petroleum stating that no evidence was introduced to show that the pumping equipment was defective, and it was neither alleged nor proved that the petitioner was negligent in using defective equipment.Nor was it shown that the petitioner had breached any legal duty in permitting the oil to escape from the pump.

In the case at bar the deteriorated condition of the pipe was specifically alleged and there is sufficient evidence to sustain the allegation as to negligence and foreseeability.

In the construction and maintenance of a pipeline, the pipeline company has a duyt of ordinary care to protect people and property in the vicinity of the line from the types of harm ordinarily resulting from such line.Thus it has a duty to properly install and maintain its lines and to avoid dangers from occurrences such as leaks and breaks in the line.Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214(Tex.1963).A pipe that has deteriorated to a point where it will no longer contain the liquid that it was meant to contain is not a fact so peculiar to a specialized industry that the defect can only be established through expert testimony.Nor, under the pleading and proof, was any additional finding of negligence required.Sinclair Refining Co. v. Winder, 340 S.W.2d 503(Tex.Civ.App. Waco1960, writ ref'd n.r.e.), Rule 279,Texas Rules of Civil Procedure.

Appellant's points five through twelve, briefed together, complain that damages to the Hilliard tract were erroneously determined and awarded by the trial court in that there is either no evidence or insufficient evidence that the tract as a whole suffered permanent damage; that there is no evidence or insufficient evidence to support the market value findings upon the basis of which the amount was fixed.These same points were urged as applicable to the Harrell tract.

We sustain the insufficient evidence points.

It is undisputed that oil has flowed over a portion of the Hilliard land, flowed into both creeks on his property and that some oil was in Quarry Creek that flows through the Harrell tract.All of the evidence of damage to the Hilliard tract (excluding damage from oil that flowed into the creeks) was confined to ten acres lying to the south of the oil pipeline.Testimony as to the actual damage to the surface of the land that could be seen by the eye was confined to approximately one acre, more or less.There is evidence that Hilliard and other neighbor witnesses dug some twenty post holes on this ten acres in undisclosed places and found what they described as oil under the ground.It is from evidence of these holes that the jury was led to believe that enough...