Socony Mobil Oil Co. v. Moore

• Court: Oklahoma Supreme Court
• Writing for the Court: PER CURIAM; JACKSON; BLACKBIRD; BERRY
• Citation: Socony Mobil Oil Co. v. Moore, 431 P.2d 328 (Okla. 1967)
• Decision Date: 24 January 1967
• Docket Number: No. 40825,40825
• Parties: SOCONY MOBIL OIL COMPANY, Inc., and Gulf Oil Corporation, a corporation, Plaintiffs in Error, v. Benny L. MOORE and Mary Lucile Moore, Defendants in Error.

Page 328

431 P.2d 328

1967 OK 23

SOCONY MOBIL OIL COMPANY, Inc., and Gulf Oil Corporation, a corporation, Plaintiffs in Error, v. Benny L. MOORE and Mary Lucile Moore, Defendants in Error.

No. 40825.

Supreme Court of Oklahoma.

Jan. 24, 1967.

Syllabus by the Court

The effect to be given the opinion evidence of an expert witness based upon factual background, by a properly instructed jury is for determination by that jury.

Appeal from the District Court of Lincoln County; Donald E. Power, Trial Judge.

Plaintiffs Moore sued for permanent damages to their farm allegedly caused by escape of defendants' salt-water and/or oil. Defendants appeal from adverse judgment. Affirmed.

Wm. Vassar, Chandler, S. M. Groom, Jr., Oklahoma City, for plaintiffs in error, James B. Diggs, Robert W. Richards, Oklahoma City, Elmer W. Adams, Angus A. Davidson, William M. Taylor, George W. Morrow, Tulsa, Charles B. Wallace, Dallas, Tex. Frank C. Bolton, Jr., New York City, of counsel.

Erwin & Erwin, Chandler, for defendants in error.

PER CURIAM:

This is an appeal from a judgment of the trial court entered pursuant to a verdict of a jury rendered in favor of the plaintiffs there, Benny L. Moore and Mary Lucile Moore and against the defendants there, Socony Mobil Oil Company, Inc., and Gulf Oil Corporation. The Moores will be referred to as plaintiffs, or plaintiff, and defendants will be referred to as such.

Defendants had for a number of years prior to the commencement of this action, and at all times during the time complained of, operated producing oil and gas wells on property owned by the plaintiffs. There had been settlements between the parties for damages done to the property of plaintiffs by reason of escaping salt water, and the last settlement entered into between the parties was on the 21st day of July, 1960.

Plaintiffs claim by their petition that the surface of their land was damaged subsequent to July 21, 1960, the date of the last settlement, by reason of oil and salt water escaping from the operation of the defendants onto the 160 acres of land owned by the plaintiffs. The defendants denied that they had done any damage to plaintiffs' land since the last settlement, and set up other defenses in their answer. After a verdict of the jury in the amount of $2700.00 in favor of the plaintiffs, the defendants perfected this appeal. The defendants assign 25 errors which they allege the trial court committed, but argue all of the claimed errors under two specific propositions.

Their first proposition is listed as:

'An excessive and disproportionate award by the jury resuled from the improper 'mixing' by the trial judge of evidence relating to both permanent and temporary damage to the land and this excessive award was further 'blown' out of proportion by opinion evidence based on a completely false predicate.'

By this proposition, defendants claim that there was an 'improper mixing' of the evidence relating to both permanent and temporary damage to the lands, and also that the opinion evidence of plaintiff was based on a completely false premise.

We shall first consider the claim that there was a mixing of both permanent and temporary damages in the case. While it is true that evidence was adduced by plaintiff tending to show that growing crops, such as tame grasses, were damaged or destroyed, the tril court very carefully and accurately excluded this element from the consideration of the jury by its instruction number seven. This instruction, which reads as follows:

'You are further instructed that you are not to consider any temporary damages which may be suffered by plaintiffs, such as loss of rental value of the land for pasture purposes and grazing purposes, since under the pleadings and evidence in this case the plaintiffs are limited in their recovery to permanent damage, if any, to their land.'

specifically limited plaintiffs in their recovery to permanent damage to said real estate.

The loss of pecan trees which plaintiffs allege they suffered and which they produced evidence to substantiate was allowed for the limited purpose of allowing the jury to determine what permanent damage was suffered to the land by reason of the specific loss of pecan trees. This is particularly set out and the purposes of it limited by instruction number six of the trial court.

The case of Chicago, R.I. & P. Ry. Co. v. Swinney, 60 Okl. 115, 159 P. 484, clearly shows that it is proper to prove destruction and injury to growing trees. While it is true that in the Swinney case, supra, plaintiffs were permitted to recover for the value of the trees, rather than the diminution in value of the real estate, the Court established that the items could be proved as an injury to the real estate. In the body of the opinion, the Court said:

'Where a thing, whether it be a building, a tree, or a shrub, is destroyed by a wrongdoer, the most natural and best measure of the damage is the value of the thing destroyed as appurtenant to, or part of, the realty; and ordinarily the value of the thing destroyed would be the measure of the injury to the freehold. If for any reason the injury to the realty should be in fact less than the value of the thing destroyed, the plaintiff's recovery would be limited to the actual diminution in value of the realty.'

In the present case, both plaintiffs and defendants adopted the theory, and the trial court instructed on the theory of diminution in the value of the real estate rather than the specific damage to the trees. Here there was damage claimed to the real estate other than the destruction or damage to the trees. This was covered by the trial court in its instruction number six, which was not excepted to by the defendants, and defendants may not now complain of the instruction. 12 O.S.1961, § 578; Burke v. Scott, Okl., 361 P.2d 272.

No complaint is made that the trial court did not properly instruct the jury on measure of damages as to permanent damage to the real estate and we determine that if properly permitted the evidence of growing trees to be considered by the jury in arriving at such permanent damage. The trial court apparently concluded that there was not sufficient evidence of temporary damages and therefore did not submit that element to the jury. We have not been shown wherein the rights of the defendants could have been prejudiced by this.

The second portion of defendants' first proposition is the contention that the trial court improperly permitted plaintiffs to introduce opinion evidence based upon what defendants claim is a 'completely false predicate'. The defendants claim that each of the plaintiffs' witnesses based his opinion in part upon the assumption that the land of plaintiff was rendered permanently unsuitable for the...