Sinclair Prairie Oil Co. v. Thornley

• Decision Date: 23 March 1942
• Docket Number: 2373.,No. 2372,2372
• Citation: 127 F.2d 128
• Parties: SINCLAIR PRAIRIE OIL CO. v. THORNLEY et al. HALLIBURTON OIL WELL CEMENTING CO. v. THORNLEY.
• Court: U.S. Court of Appeals — Tenth Circuit

127 F.2d 128 (1942)

SINCLAIR PRAIRIE OIL CO. v. THORNLEY et al. HALLIBURTON OIL WELL CEMENTING CO. v. THORNLEY.

Nos. 2372, 2373.

Circuit Court of Appeals, Tenth Circuit.

March 23, 1942.

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Charles E. France, of Oklahoma City, Okl., and W. H. McBrayer, of Tulsa, Okl. (Edward H. Chandler and Summers Hardy, both of Tulsa, Okl., and John H. Miley and Miley, Hoffman, Williams, France & Johnson, all of Oklahoma City, Okl., on the brief), for appellant Sinclair Prairie Oil Co.

Philip N. Landa, of Tulsa, Okl. (Hal Crouch and Chris L. Rhodes, both of Tulsa, Okl., and A. G. Crowe, of Oklahoma City, Okl., on the brief), for appellant Halliburton Oil Well Cementing Co.

V. P. Crowe, of Oklahoma City, Okl. (John Embry, Charles Edward Johnson, and Raymond A. Tolbert, all of Oklahoma City, Okl., and Thomas J. McMahon, of Abilene, Tex., on the brief), for appellee Ludie W. Thornley.

Claude Monnet, of Oklahoma City, Okl. (Mart Brown, of Oklahoma City, Okl., on the brief), for appellee A. D. Engle.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

Sinclair Prairie Oil Company¹ entered into a written contract with A. D. Engle,² an independent contractor, in which he agreed to deepen Sinclair's Deatherage No. 1 oil well from 4,186 feet to a depth of 4,360 feet. The contract provided that Sinclair had no direction or control over Engle's employees except in the result to be obtained, and that the work was to be done in a manner to be finally approved by Sinclair. Engle agreed to carry workmen's compensation, employers' and public liability insurance, and to assume responsibility for all such claims, and to hold Sinclair free, clear, and harmless therefrom. The well had been producing a small quantity of oil and approximately 5,000 cubic feet of gas. This gas was vented into the air through a two-inch line attached to the casinghead. The tubing through which the oil was pumped had been removed before the work began. Whatever oil came from the sand was allowed to accumulate in the well, but this was bailed out before the deepening operations began. A belt hall extended south from the well for approximately fifty feet, and opened into an engine house which extended south for another thirty-six feet.

After the contract depth was reached, it became necessary to underream the hole in order to lower the pipe. Sinclair employed the Tripplehorn Casing Crew, an independent contractor, to pull the casing. After the underreaming operation was completed by Engle, the Tripplehorn Casing Crew lowered the five-inch pipe within a few feet of the bottom of the hole. After this, Sinclair decided to circulate and aquajell the well. It employed the Halliburton Oil Well Cementing Company³ to do this work. While the well was being circulated and aquajelled, an explosion of gas escaping from the well occurred, which caused the death of C. D. Thornley, an employee of Engle.

The original action was instituted by Ludie W. Thornley, administratrix of the estate of C. D. Thornley, deceased,⁴ against Sinclair, Halliburton and Engle, in the District Court of Oklahoma County, Oklahoma. Appellee dismissed as to Engle, whereupon the cause was removed to the federal court by Sinclair. After the case was removed, Engle was brought back in by a third party complaint filed by Sinclair.

In substance the petition alleged that Thornley's injuries resulted from the joint and concurrent negligence of the defendants and each of them in failing to provide a reasonably safe place in which to work and in failing to keep the premises reasonably safe for work. Sinclair denied negligence on its part and plead affirmatively contributory negligence and assumption of risk by Thornley. As against Engle, Sinclair asked that if judgment be rendered against it, it have judgment over against him for a like amount. Halliburton denied liability and affirmatively plead contributory negligence on the part of Thornley. The appeal in No. 2372 is by Sinclair and in No. 2373 by Halliburton, from a judgment in favor of Appellee.

Number 2372.

Engle had two drilling crews working twelve hours each. Each crew consisted of a driller and an assistant. Thornley was the driller on one of the crews. Engle had deepened Deatherage No. 3 for Sinclair prior to his work on No. 1. Thornley had worked on that well. The machinery and equipment used on Well No. 3 was moved to No. 1. Along with other equipment, a gas heating stove was moved to No. 1. Gas was supplied from a fuel line running to the engine. This stove was placed in the engine house and was used by the employees to keep warm. The stove was turned on and off as needed throughout the various operations. It was used not only by Engle's employees but also by the employees of Halliburton.

The object of circulating a well is to force the fluid in the well to the surface. This is accomplished by pumping water into the well. This causes the fluid in the well to be forced out between the 5½ and the 8-inch casing, thus forcing it to the top of the well. As water is forced into the well, it causes a return of the gas first, the oil second, the water already in the well third, and, lastly, the water that is pumped into the well. The amount of water required is determined by the history of the well. All this information was in the possession of Sinclair.

The well started to circulate, with the result that gas and oil accumulated in the cellar under it and around the derrick of the well. The gas from the well came in contact with the flame in the stove, with the resultant explosion which caused Thornley's death.

Sinclair predicates error on the refusal of the court to sustain its motion for a directed verdict. Sinclair was required to furnish a place that was reasonably safe for the activities and operations contemplated. Cudahy Packing Co. v. Luyben, 8 Cir., 9 F.2d 32; Kaw Boiler Works v. Frymyer, 100 Okl. 81, 227 P. 453; Lisle et al. v. Anderson, 61 Okl. 68, 159 P. 278, L.R.A.1917A, 128. Weger, its district superintendent, was present throughout most of the operations. He was there at all times during the operations carried on by Halliburton, and exercised some supervision and control over the processes of circulating and aquajelling the well. He determined the amount of water and aquajell to be put into the well. He knew that the well was making some gas and that the connections through which the gas was carried into the air had been removed. He saw the burning stove and its proximity to the well and knew that if the well began to circulate, gas would flow around the well. Under all these circumstances, the question of Sinclair's negligence in failing to use ordinary care to protect deceased was properly submitted to the jury. Its finding was not without support of substantial evidence.

Exception is taken to the instruction of the court defining negligence. The court instructed the jury that:

"A common definition of negligence is that it consists of the failure to do what a person of ordinary prudence and care would do under the circumstances of a particular or given situation, or in doing something which such a person would not have done under those circumstances. The acts of a person under certain circumstances might not be negligence, while they would be under other and different circumstances. You, as the jury, must fix the standard for reasonable, prudent and cautious men under the evidence and circumstances of this case as you find them according to your best judgment and experience of what that class of men would do under those circumstances, and then test the conduct involved here and try it by your standards, and that is your sole duty in regard to which even the court cannot advise you further in the way of setting up a criterion of opinion."

Sinclair contends that the court should have told the jury that the test was the care usually exercised under similar circumstances by an ordinarily prudent person engaged in the same kind of business. This is substantially what the court did. That part of the court's instruction which refers to what a person "would do under the circumstances of a particular or given situation," and in which the court tells the jury to use its best judgment and experience of what "that class of men" would do under those circumstances, fairly interpreted, could mean only what a reasonably prudent person, engaged in circulating and aquajelling a...