States Exploration Co. v. Reynolds

• Decision Date: 15 September 1959
• Docket Number: 38372,Nos. 38095,s. 38095
• Citation: 344 P.2d 275
• Parties: STATES EXPLORATION COMPANY, a Foreign Corporation, Plaintiff in Error, v. Fred REYNOLDS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 275

344 P.2d 275

1959 OK 153

STATES EXPLORATION COMPANY, a Foreign Corporation, Plaintiff in Error, v. Fred REYNOLDS, Defendant in Error.

Nos. 38095, 38372.

Supreme Court of Oklahoma.

Sept. 15, 1959.

Syllabus by the Court

1. In passing on alleged error in overruling defendant's demurrer to plaintiff's evidence, the evidence will be construed in the light most favorable to plaintiff and where there is any evidence or reasonable inferences from the circumstances reasonably tending to establish a cause of action or sustain a jury's verdict and a judgment based thereon, such judgment will be sustained on appeal unless shown to be contrary to law.

2. Where the instructions of the court do not cover special theories or defenses relied upon the complaining party should call the court's attention to the omission by an appropriate request for additional instructions, or he will be precluded from making such failure available as reversible error.

3. Where there is any competent evidence reasonably tending to sustain a jury's verdict and judgment based thereon, such verdict and judgment will not be reversed on appeal.

4. Newly discovered evidence as referred to under Title 12, Section 651, subdivision 7, is evidence of facts existing at time of trial, of which aggrieved party was excusably ignorant. Facts and circumstances developed or occurring after the trial of the case, which did not exist at time of trial ordinarily will not be considered as newly discovered evidence, and it is reversible error where the trial court grants a new trial based on such character of evidence which at most is merely cumulative or contradictory to the former evidence.

Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

Action by Fred Reynolds for damages to earthen dam allegedly caused by explosion of dynamite detonated by defendant, States Exploration Company. Judgment for plaintiff, Fred Reynolds, and defendant appealed in Case No. 38,095. Thereafter the trial court granted defendant a new trial based on alleged newly discovered evidence, and from that order the plaintiff, Fred Reynolds, appealed in Case No. 38,372. Affirmed as to Case No. 38,095. Reversed as to Case No. 38,372.

T. R. Benedum, Norman, for States Exploration Company, a foreign corporation.

Bailey & Whitlock, Norman, for Fred Reynolds.

WELCH, Justice.

The reason for the two appeals arises out of the following situation: The cause was tried in May of 1957. A motion for new trial was filed and overruled during the same term. An appeal was filed with this court in December, 1957, by the defendant from the judgment rendered in favor of the plaintiff, being in Case No. 38,095. The defendant filed its brief in January, 1958, and plaintiff filed his briefs in February, 1958. Thereafter, on February 20, 1958, a petition for a new trial on the grounds of alleged newly discovered evidence was filed in the district court by the defendant. A hearing was had on said petition and the court granted the motion for new trial. The appeal by plaintiff in No. 38,372 is from the judgment and order granting this new trial.

This action was commenced October 10, 1956, in the trial court by the plaintiff, Fred Reynolds, against the defendant States Exploration Company. The parties will hereafter be referred to as they appeared in the trial court.

The record reveals that the plaintiff in 1949 constructed an earthen dam upon a tract of land owned by him, which impounded water over approximately sixty-five acres of surface. On May 7, 1956, defendant, in conducting seismic operations, detonated two charges of dynamite in a drilled hole immediately south of the earthen dam, approximately one-hundred and fifty feet from one end of the dam, and three hundred feet from the other end.

The evidence concerning the effect of this activity by the defendant is conflicting. Plaintiff produced evidence to prove that the dam had held water for seven years except for a small amount of seepage common to all earthen dams; that subsequent to the explosions water of the same color and chloride content as that of the lake arose from the shot hole much in the manner of water from an artesian well; that the level of the lake began to drop at the rate of six to eight inches per day; that water continued to flow from the shot hole for two or three weeks; that a pond of water formed below the dam which was considerably larger than that formed from natural seepage during prior years; that the water level of the said lake decreased within thirty days to less than ten surface acres of water, and the water receded from the dam a distance of approximately one hundred feet; that subsequent rains on the watershed have periodically refilled the lake, but that it immediately recedes when the runoff ceases; that there are no natural artesian wells in the area; that underground water has a different chloride content to that of surface water. An expert witness for plaintiff testified that since no water appeared in two other shot holes a distance of only fifteen to twenty feet from the one producing water, it was his opinion that the water coming from the hole was from the lake by way of a fissure directly connecting that hole with the lake. Another expert witness testified it was not safe to explode this quantity of dynamite at such distance from the dam. Two expert witnesses testified that the damage would probably cause the dam to slide or wash out in the future. Plaintiff's testimony also established that the dam was leaking badly for a distance of two hundred feet across its base; that the base soil was saturated; that the dam could not be repaired in sections, but the entire structure would have to be removed and replaced.

The defendant offered evidence to show that plaintiff's dam had not been efficiently and adequately constructed; that the dynamite explosions had not damages plaintiff's dam or lake; that any lowering of the lake water level in 1956 was due to decreased rainfall and to natural evaporation and seepage, and not to the dynamite explosions; that the lake was full at the time of trial in May, 1957.

The plaintiff contended that, while the lake was full at time of the trial, the water level had intermittently risen because of rains and fallen because of damage by the dynamite explosions during the year that elapsed between the date of the explosions and the trial date, and there was some evidence to that effect.

The testimony of various witnesses estimated the damages to plaintiff's dam and lake at from $12,000 to $30,000. The jury found the facts for plaintiff, and awarded damages of $9,000.

In its first proposition defendant contends that the trial court erred in overruling its demurrer to the evidence.

In the case of Elk City v. Rice, Okl., 286 P.2d 275, 276, we held:

'In passing upon alleged error in overruling defendant's demurrer to plaintiff's evidence and request for directed verdict, the evidence will be construed in the light most favorable to plaintiff and where there is any evidence or reasonable inference from the circumstances reasonably tending to establish a cause of action or to sustain a jury's verdict and judgment based thereon, such judgment will be sustained on appeal unless shown to be contrary to law.'

Also see Carter Oil Co. v. Johnston, 208 Okl. 564, 257 P.2d 817, and Grand Distributing Co. v. Adams, 206 Okl. 451, 244 P.2d 571.

We are of the opinion that the evidence in this case is sufficient to sustain the verdict, and the trial court did not commit error in overruling the demurrer of defendant.

The defendant also contends that the court erred in giving instructions Nos. 3, 5 and 6.

Instruction No. 3 was to the effect that defendant was liable for all damages to plaintiff's property resulting directly and proximately from explosion, and that this was true notwithstanding the exercise of due care by defendant. This instruction was substantially a correct statement of the law as to defendant's liability. Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185; Smith v. Yoho, Okl., 324 P.2d 531, and Superior Oil Co. v. King, Okl., 324 P.2d 847.

Instruction No. 5 instructed the jury that if it found by a preponderance of the evidence that as a direct and proximate result of setting off the blast that the dam was cracked, resulting in the loss of twenty-five acres of water, materially damaging said lake, and that loss of water was not caused by extended dry period, that in that event its verdict must be for plaintiff, but if it did not find such, its verdict must be for the defendant. Defendant contends the court erred in failing to instruct the jury as to other theories, i. e., that the loss of water was by seepage due to faulty construction, and that explosion did not weaken the dam. These theories are merely evidentiary questions which tend to negate the positive conclusion required of the jury to establish liability.

Defendant also asserts that the court erred in giving instruction No. 6, which is as to the measure of damages. Although defendant objected to this instruction and saved its exceptions, it offered no substitute for the instruction given by the court. The main objection is that this instruction covered issues not raised by the pleadings. However, we are of the opinion that the instruction was within the scope of the issues as shown by the evidence presented at trial without objection.

In the case of Coats v. Duncan, 202 Okl. 188, 211 P.2d 269, 270, we held:

'The trial court commits no error in giving an instruction within the issues raised by the evidence in the case admitted without objection, although not within the issues raised by the original pleadings in the case, where the pleadings might have properly been amended at the trial to conform to the proof.'

This instruction in our opinion substantially covered the issues as shown by the evidence, and the trial court did not commit error in giving it.

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