Stanolind Oil & Gas Co. v. Jamison

• Decision Date: 01 August 1950
• Docket Number: No. 33449,33449
• Citation: 227 P.2d 404,204 Okla. 93,1950 OK 210
• Parties: , 23 A.L.R.2d 1141 STANOLIND OIL & GAS CO. v. JAMISON.
• Court: Oklahoma Supreme Court

Page 404

227 P.2d 404

204 Okla. 93, 23 A.L.R.2d 1141

STANOLIND OIL & GAS CO. v. JAMISON.

No. 33449.

Supreme Court of Oklahoma.

Aug. 1, 1950.

Rehearing Denied Feb. 6, 1951.

Syllabus by the Court.

1. Where counsel for the prevailing party made an improper statement in his opening statement to the jury, and the trial court sustained an objection and admonished the jury not to consider the statement, and no evidence to substantiate the statement was introduced during the trial, and the record does not disclose that any prejudice resulted to the losing party thereby, the judgment will not be reversed because of such improper statement.

2. In the trial of the cause defendant contended that the appointment of the plaintiff as special administrator was defective. The trial court denied this contention and the trial of the cause proceeded in all respects as though no question had been raised as to the validity of plaintiff's appointment. After verdict and judgment plaintiff was permitted to amend his petition by attaching thereto an order nunc pro tunc made by the court appointing him, correcting the alleged defective appointment. It does not appear that the amendment in any respect changed the claim or cause of action asserted by plaintiff, or that it deprived the defendant of any defense or prevented it from having a fair and impartial trial upon the merits. Held, that the amendment merely substituted a properly appointed special administrator for one whose appointment was questioned, and was permissible under 12 O.S.1941, section 317.

3. In an action for the wrongful death of an eight year old child, who climbed a flight of steps leading to the top of an oil tank and was asphyxiated by the gas arising from the oil in said tank, where the evidence showed that the child and her brother were in the habit of playing near the tank, and had not been warned of the danger from gas arising from the oil in the tank, and had been taken up the stairway and permitted to look into the tank by an employee of defendant, and there was testimony showing that the children had been seen upon the cat-walk near the top of the tank, the question of whether defendant was negligent in not installing a gate or other appliance on the stairway to prevent the children from climbing to the top of the tank, was a question for the jury.

Donald Campbell, T. W. Arrington, both of Tulsa, Ralph J. May, Oklahoma City, Fellows & Fellows, Tulsa, for plaintiff in error.

Lillard & Lillard, John M. Lawrence, all of Oklahoma City, for defendant in error.

LUTTRELL, Justice.

This action was brought by plaintiff Alexander Jamison, special administrator of the estate of Frances Catherine Davis, deceased, against the defendant Stanolind Oil and Gas Company, to recover damages for the wrongful death of deceased. From a verdict and judgment for plaintiff, defendant appeals.

Frances Catherine Davis, the deceased, was a child of the age of eight years at the time of her death, and the action was brought under the attractive nuisance doctrine. There is no dispute as to the essential facts. The deceased child lived with her mother, her ten year old brother and her uncle, her mother's brother, upon a 160 acre tract of land in Logan County, owned by the latter, upon which land the defendant had an oil and gas lease with a producing well. Upon this lease, some 194 feet from the fence surrounding the residence in which deceased and her family resided, defendant had erected a battery of four 500 barrel steel flow tanks, the tanks being 16 feet in height and 22 feet in diameter. Surrounding these tanks was a low earthen barrier or fire wall to prevent the escape of oil upon the adjacent land in the event of fire or other injury to the tanks. Near the top of the tanks was a narrow walkway or cat-walk with a railing around it to prevent persons from falling, which cat-walk as reached by a flight of 21 steps. On top of each tank, located near the cat-walk, was a vent or thief hatch, as it was commonly termed, an opening some 7 1/2 or 8 inches wide by 21 1/2 or 22 inches long, which opened into the tank, and which was used in gauging the amount of oil in the tank. Each thief hatch had a steel lid or top which was not fastened down and was easily raised or lowered, so that when an excessive amount of gas collected in a tank the pressure thereof would automatically raise the lid and permit the escape of the gas.

On the morning of August 12, 1945, at about eight o'clock in the morning, an employee of defendant found the child Frances Catherine Davis on the cat-walk at the top of the tanks, with her face in the vent or thief hatch of said tank. When he found her she was dead. Apparently she had gone up the steps and along the cat-walk to the tank, and had found the thief hatch lid raised, or had raised it, and while looking down into the tank had been overcome by the gas. A former employee of defendant, who was employed on the lease at the time the accident occurred, testified that the child and her brother sometimes played in a road on the lease which led past the tanks, and that at one time he had taken them up the stairway and upon the cat-walk, and let them look down into the tank through the thief hatch, and that he had warned them to stay away from the tanks and not attempt to climb up to the cat-walk because of the danger of falling, and also because of the possibility of fire. He further testified that at one time he saw the ten year old brother of deceased upon the cat-walk raising and lowering the lid of a thief hatch, and that he had warned him not to climb up to and upon the cat-walk because of the danger of falling therefrom. The uncle of deceased testified that he saw her playing upon the cat-walk and told her to stay down from there, that she might fall off and get hurt.

From the evidence it appears that neither the children nor their mother nor uncle had ever been warned of the danger of gas accumulating in the tanks, and that they were unfamiliar with such danger. Both the mother and uncle testified that this same employee had taken them to the top of the tanks and permitted them to look down through the thief hatch, and that the oil in the tanks was a very beautiful sight, in that it reflected all the colors of the rainbow. The mother testified that the dead child was of at least average intelligence, and assisted her in performing various chores about the place. The uncle testified that on that particular morning she had gone to the pasture and driven up the cows for him, going into the roadway which led past the tanks through a gate which, while ordinarily closed, was not locked, and that after she brought up the cows he assumed she had gone to the house and had no knowledge of her whereabouts until informed by defendant's employee of her death.

From the evidence produced by defendant it appears that the tanks were usual and ordinary equipment on oil and gas leases in that vicinity, and that ordinarily no precautions were taken to fence the stairway or place a gate thereon in order to prevent persons from climbing to the top of the tanks.

Defendant in seeking reversal of the case first contends that the trial court erred in refusing to grant a mistrial because of prejudicial remarks in the opening statement of counsel for plaintiff. From the record it appears that in the opening statement one of counsel for plaintiff stated that within a week after the death of deceased the defendant erected a fence around the tanks. The trial court, upon objection by defendant's attorneys, admonished the jury not to consider the statement so made, and ordered it stricken, but refused to grant a mistrial. Defendant argues that this was prejudicial error, calling attention to Kaw Boiler Works v. Frymyer, 100 Okl. 81, 227 P. 453; Incorporated Town of Sallisaw v. Wells, 90 Okl. 78, 216 P. 118, and other cases holding that evidence of repairs subsequent to an accident or injury is not admissible for the purpose of establishing negligence.

We think that the prompt action of the trial court in admonishing the jury that the statement should not have been made by counsel, and was not to be considered by them, was sufficient to prevent its consideration by the jury, especially where plaintiff made no attempt to introduce evidence showing that a fence was later constructed around the tanks. Charley v. Norvell, 97 Okl. 114, 221 P. 255; General Pipe & Supply Co. v. Brown, 144 Okl. 236, 291 P. 104.

Defendant next contends that plaintiff had no statutory power or authority to institute this action. In its answer defendant questioned the power and authority of plaintiff to maintain the action, and early in the trial introduced in evidence a complete record of the appointment of plaintiff as special administrator by the county court of Logan County. The order of appointment did not recite any power to be exercised by the special administrator, and the clerk of the county court certified that there was no minute entry upon the minutes of the county court specifying the powers to be exercised by the special administrator as provided by 58 O.S.1941 § 212. The trial court overruled all of defendant's objections to the further prosecution of the action on the ground of lack of authority in the plaintiff to prosecute the action, and after the verdict and judgment permitted plaintiff to file an amendment to his petition, attaching thereto an order nunc pro tunc made by the county court of Logan County, reciting that by inadvertence the former order had not granted power or authority to plaintiff to bring and maintain the action, and specifically conferring that power upon him.

Defendant moved to strike this amendment, which motion was by the trial court denied, and defendant's motion for new trial and supplemental motion for new trial because of error of the court in allowing the amendment were by the trial court overruled. Defendant contends that the failure to...