Sinclair Oil & Gas Company v. Adams, 6635
| Decision Date | 10 June 1965 |
| Docket Number | No. 6635,6635 |
| Citation | 392 S.W.2d 721 |
| Court | Texas Court of Appeals |
| Parties | SINCLAIR OIL & GAS COMPANY, Appellant, v. J. A. ADAMS et al., Appellees. |
Orgain, Bell & Tucker, Keith Mehaffy & Weber, Beaumont, for appellant.
Clark, Thomas, Harris, Denius & Winters, Austin, Mary Joe Carroll, Austin, of counsel, Ward W. Markley, Glenn Faver, Jasper, for appellees.
Two separate suits, one by H. W. Mattox and the other by J. A. Adams and D. M. Henderson, were brought against Sinclair Oil & Gas Company and L. V. Musgrove seeking to recover damages for destruction of and injury to said plaintiffs' timber and pine seedling trees as a result of a fire which allegedly spread from a tract upon which Sinclair was operating a gas well to lands owned by the plaintiffs. Sinclair cross-acted against Musgrove for contribution and indemnity. Subsequently, the two suits were consolidated and tried together upon proper motion and order of the court. The court instructed a verdict in favor of Musgrove against all the parties, and the jury found in favor of all plaintiffs against Sinclair. Hence, this appeal by Sinclair.
Liability of Sinclair was established by affirmative answers of the jury to the following issues:
1. 'Do you find from a preponderance of the evidence that the fire of February 12, 1961, made the basis of this lawsuit, started because of the defendant, Sinclair Oil & Gas Company's, operation of its gas well * * *?'
2. (Predicated on affirmative answer to No. 1) Sinclair failed to encircle the gas well with a fire lane before the fire?
'Additionally the jury found (Issue No. 5) that Sinclair, under all the facts and circumstances then and there prevailing, failed to keep a proper lookout over its gas well properties.
'Issue No. 8 () that Sinclair or its agents, servants or employees permitted a fire to get under way from their gas well properties.
Issue No. 11 that Sinclair's operation of the gas well, under all the facts and circumstances then and there prevailing, created a fire hazard and (No. 12) Sinclair, its agents, etc., failed to provide or exercise proper control over said fire hazard.
The corollary issues, of negligence and proximate cause, to the primary special issues, above, were also answered affirmatively by the jury.
(1) The very crux of this lawsuit hinges upon the question of whether or not the fire in question was occasioned by or from the operation of certain equipment on Sinclair's lease as referred to in Special Issue No. 1 hereinbefore set out. We first treat Sinclair's points of error which assert there was no evidence that it caused the fire as found by the jury in answer to Special Issue No. 1, hence the error of the trial court in overruling its motions for instructed verdict made when plaintiffs rested and again at the close of all evidence. In keeping with out duty we have diligently searched the record for all probative evidence favorable to the appellees and have found none. We set forth the substance of the pertinent evidence:
All tracts of the appellees' lands lay in a northeasterly direction from Sinclair's location, the Mattox and Henderson tracts being adjacent thereto. The fire occurred early on a Sunday afternoon in February, the exact time not being known. No witness saw the fire when it begain. L. V. Musgrove, the first witness to observe the fire, had driven to the Sinclair lease that Sunday morning to repair a pump connected to a piece of equipment identified as an LTX Unit. He had been working 30 minutes to an hour when he first became aware of the fire. He was sitting on a small stool facing northeast, at the northeast corner of said unit, such position being on the far side of the unit from that on which the fire started. There was a strong southwest wind of 18 to 20 miles per hour. His attention was drawn to the fire when he first smelled smoke and turned around and looked behind him to the southwest. He then observed that the fire was between 75 and 150 yards inside the timberline to the southwest of him in a semi-circle, 75 to 150 yards long. (All other witnesses testifying had arrived at the scene later.) Another piece of Sinclair equipment, known as a heater-treater, was located approximately 185 feet south of the LTX unit on which Musgrove was working. (Appellees' basic contentions throughout the trial and here are that by some means or manner fire or sparks from this heater-treater was the cause of the fire.) The wind was blowing about 20 miles per hour from the southwest, or from the direction of the heater-treater, toward Mr. Musgrove. When he first saw the fire it was about 3 or 4 feet high. Upon discovering the fire, Musgrove immediately left the scene to report it. He did not go to the far side of the heater-treater to determine if there was any fire on that side of it from him. He testified:
'Q. All rights. Now then I believe that you testified that you left when you saw the fire here in this area? Would you say the fire was approximately 100 yards from you?
A. Well, Mr. Faver--
Q. Would you say approximately?
A. It would be approximately. It could be 75 to 150 yards to the best of my judgment.
'Q. All right. It it's 50 yards from the L.T.X. to the heater treater--
A. It would be about another 50 yards then to whether the fire was.
Q. About another 40 to 50 yards to where the fire was?
A. Right.'
'Q. Had it gotten, when you first saw it, and as the fire was coming to-ward you pushed by this wind, had it gotten to any part of the premises of this oil well or this gas well site?
A. No, it was between the gas well site and those woods where I saw it.'
Thus, appellees can find no comfort in Musgrove's testimony that the fire was due to Sinclair's operations. He did not establish that the fire was even on the Sinclair lease when he first saw it. He could not say, nor could any other witness, that a fire was burning within the heater-treater on the day or time in question.
Dixon Cobb arrived at the scene about the same time as fire trucks, about 3:00 p. m., and worked at putting out the fire. He testified to the location of a creek in the near vicinity to the west of the Sinclair lease and that there was no evidence of the fire coming from the west across said creek; no evidence of fire coming from the south; the main volume of the fire went northeast:
On cross-examination, after Cobb had testified that the various pieces of Sinclair equipment were pained with aluminum paint, he was asked why they had not been scorched after a 5 to 40 foot flame had come through the lease. He replied:
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He also made the observation that...
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