Sohio Pipeline Co. v. Harmon

• Decision Date: 26 March 1981
• Docket Number: No. 1395,1395
• Citation: 613 S.W.2d 577
• Parties: SOHIO PIPELINE COMPANY, Appellant, v. W. B. HARMON, Appellee.
• Court: Texas Court of Appeals

Page 577

613 S.W.2d 577

SOHIO PIPELINE COMPANY, Appellant, v.W. B. HARMON, Appellee.

No. 1395.

Court of Civil Appeals of Texas, Tyler.

March 26, 1981.

Rehearing Denied April 9, 1981.

Stephen R. Patterson, Nichols, Merriman, Patterson & Allison, Longview, for appellant.

Blake Bailey, Wellborn, Houston, Bailey, Perry & Adkison, Henderson, for appellee.

McKAY, Justice.

This is a suit for damage to land in which W. B. Harmon(Harmon) alleged that Sohio Pipeline Co.(Sohio) negligently allowed one of its pipelines carrying crude oil to become deteriorated which resulted in crude oil and salt flowing over many acres of Harmon's land.It was further alleged by Harmon that the water became poisoned by the oil and salt flowing from the pipeline which covered the surface water on the Harmon property.By trial amendment Harmon alleges res ipsa loquitur.Sohio generally denied all of Harmon's allegations, and after a jury trial, the trial court rendered judgment for Harmon for $15,000, and Sohio appeals.

The jury found (1) the oil spill was due to the negligence of Sohio's agents, servants, or employees; (2) such negligence was a proximate cause of the damage to Harmon's land; (3) such damage was temporary; and (4) that $15,000 was the reasonable cost of repairs necessary to restore Harmon's land to its condition prior to the oil spill.

Sohio brings two points of error: (1) there was no evidence to support the submission of issue one, and (2) the evidence is factually insufficient to support the jury's answer to issue one.

A pipeline company has a duty to use ordinary care in the maintenance of its pipeline to protect property near the line from accidents which might reasonably be expected to occur, e. g. leaks and breaks in the line.Scurlock Oil v. Harrell, 443 S.W.2d 334, 337(Tex.Civ.App. Austin1969, writ ref'd n. r. e.);Scurlock Oil v. Roberts, 370 S.W.2d 755, 757(Tex.Civ.App. Texarkana 1963, no writ).Following the decision in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221(1936), the doctrine of strict liability has not been applied to pipeline cases, and when a malfunction does occur, the plaintiff landowner has the burden of pleading and proving the negligence of the pipeline operator.Kennedy v. Brandenburg, 470 S.W.2d 789, 790(Tex.Civ.App. El Paso 1971, no writ).As stated in Scurlock v. Roberts, supra at 757:

* * * 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 doctrine of res ipsa loquitur may be applied to create an inference of negligence, 45 Tex.Jur.2d, Pipelines, PipelineCos. § 22, p. 348, if two elements are present: (1) the injury must be one that ordinarily does not occur if due care has been exercised, and (2) it must be caused by an instrumentality under the control of the defendants.1 Ray, Texas Law of Evidence§ 108(Texas Practice, 1980), p. 169.

The record shows that the only possible evidence of Sohio's negligence presented by appellee came from the testimony of Mrs. Harmon in which she repeated statements which she claimed were made to her by certain Sohio employees.

Mrs. Harmon first testified to a conversation which she had with Jerry O'Donnell, a foreman for Sohio who initially reported the accident to the Harmons and obtained their permission to come on the land to examine the spill.According to Mrs. Harmon, "He(O'Donnell) said he showed us this valve and said that it burst and broke, and the oil was spurting out all over."Counsel for Sohio objected to this testimony on the basis of hearsay, but it was admitted as an exception to that rule on the basis that it was an admission against interest by an agent of the defendant.

Jim Kendrick, a district supervisor for Sohio, had also spoken with Mrs. Harmon.Kendrick was apparently in charge of the clean-up operation on the Harmon's property after the spill and had gone to the Harmons to discuss the leak.In the words of Mrs. Harmon at trial, "(H)e showed me the valve, and said that it was an old valve and evidently it had just burst and when they found it the oil was squirting out..."Appellee places a great deal of emphasis on the characterization of the valve as "old".No objection to this testimony was made by appellant at trial and therefore any error which may have been committed was waived.

Finally, Mrs. Harmon testified that Kendrick "... told me that it (the spill) was their responsibility ... and they would take care of it."Another hearsay objection was lodged against this testimony and overruled.

It is well established that "statements of an agent are admissible against his principal when they accompany an authorized act..."1 R. Ray, Law of Evidence§ 1164(Texas Practice, 1980), p. 321.The statement must, however, be closely related to the endorsed action and must not be purely voluntary or made merely in casual conversation.LeSage v. Pryor, 137 Tex. 455, 154 S.W.2d 446, 450(1941);See also24 Tex.Jur.2dEvidence§ 621.

The statements by both O'Donnell and Kendrick to which Mrs. Harmon testified were made while each was engaged in an authorized act on behalf of Sohio.O'Donnell was apparently in charge of the initial investigation of the leak and had the responsibility of...