The Home Oil & Gas Company v. Dabney

• Decision Date: 10 April 1909
• Docket Number: 15,937
• Citation: 79 Kan. 820,102 P. 488
• Court: Kansas Supreme Court
• Parties: THE HOME OIL & GAS COMPANY, a Partnership, etc., v. W. M. DABNEY et al., as Partners, etc

102 P. 488

79 Kan. 820

THE HOME OIL & GAS COMPANY, a Partnership, etc., v. W. M. DABNEY et al., as Partners, etc

No. 15,937

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Chautauqua district court; J. A. FERRELL, judge pro tem. Opinion filed April 10, 1900. Reversed.

STATEMENT.

THE plaintiffs, W. M. Dabney and George L. Lane, were partners engaged in the business of drilling oil and gas wells. The defendants were partners, under the name of the Home Oil & Gas Company, and were the owners of an oil-and-gas lease of land upon which the plaintiffs contracted to drill a well. After the well had been brought in and turned over to the owners there was an explosion of escaping oil and gas resulting in a fire, which damaged and partly destroyed the plaintiffs' drilling-machinery. This action is to recover for the loss which it is alleged was occasioned by the negligence of the defendants. Issues were joined and there was a trial to a jury. At the conclusion of the plaintiffs' testimony the defendants demurred. The demurrer was overruled, and the verdict and judgment were for the plaintiffs. The defendants prosecute error, and the main contention is that the demurrer to the evidence should have been sustained.

The petition sets up an oral contract by the terms of which the plaintiffs were to furnish the machinery and receive 75 cents a foot for drilling the well, and $ 15 a day for cleaning it out. The defendants were to furnish the casing and all connections and material to connect and equip the well. It is alleged that on December 17, 1905, at about six o'clock in the evening, the well was completed to a depth of 1100 feet, and defendants were duly notified of that fact; that it was discovered in drilling the well that it produced both oil and gas, the gas being in small or limited quantity. There is a further allegation that when the well was about completed the defendants were notified that it would be very late in the evening before the well would be finished to the proper depth, and that the defendants were advised by the plaintiffs "not to order the shot that day as it would be very late before the well would be ready for shooting"; that notwithstanding the caution and advice so given by the plaintiffs, the defendants took charge of the well about 6:30 o'clock in the evening and thereupon proceeded to shoot the well with forty or fifty quarts of nitroglycerin. It is further alleged that the defendants failed to furnish any casing-head to be put on the top of the casing after the shot, and failed in any way to connect the well with a tank in order that the very probable flow of oil and gas resulting from the shot might be conducted to the tank, and failed to place a capable or suitable person in charge of the well during the night, "all of which should have been done by said defendants."

It is alleged that before the well was turned over to the defendants the plaintiffs took down the forge and to the best of their ability put out the fire and cooled off all the heated portions of the forge with water in order to prevent any possible explosion, and put out all fire in and about the boiler that could by them be seen or discovered, and with water cooled off all hot or heated material about the boiler except that portion of the boiler which it was necessary should remain warm in order to produce sufficient steam for the defendants to shoot the well; that about eight o'clock in the evening the oil and gas began to flow out through the casing to the surface, and over the drills and machinery of the plaintiffs; and that about nine o'clock an explosion of oil and gas took place, resulting in the burning and destruction of the plaintiff's property.

The negligence of the defendants is alleged to have been in shooting the well in the night-time and after dark, and in shooting it without having ready to be placed on the top of the casing a good and sufficient casing-head, and in failing and neglecting to have the well after it was shot properly connected with an oil-tank for the purpose of collecting and holding such oil and gas as might flow during the night, and by failing to look after the well during the night by leaving a capable or suitable person in charge thereof. There is no allegation in the petition of how the explosion occurred or what was the immediate cause of it.

On the trial the man in charge of the drilling for the plaintiffs Charles Slaughterbeck, testified that the well was finished about five o'clock; that Charles Hess, the manager of the defendants, was there at the time; and that when the well was completed it was measured up and the shot was put off just about dusk. The only testimony with respect to any advice or warning given defendants is as follows:

"Ques. What did you say to him? Ans. Well, in the first place, before noon he asked me when the well would be ready to shoot, and I told him it would be night before we could get through the sand and get the shot off--it would be night--and he said he would see about it when he came out after dinner. When he came out after dinner he had ordered the shot, and the shooter came and waited two or three hours, I suppose to be ready to shoot it, and I asked him if it could n't wait until morning, it would make it late, but he seemed to want to shoot the well, and he did shoot it."

Slaughterbeck testified that he helped the shooter put in the shot, under the directions of Mr. Hess; that there was no cap put over the well, and no connections were made, and no nipple was there for the purpose of putting on a casing-head. He also testified to putting out the fire in the forge and under the boiler, and that he took every precaution possible to see that there was no fire about the premises when he left.

There was no one about the well at the time the explosion occurred, and there is no evidence to show what caused it.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROXIMATE CAUSE--Question of Law or Fact. Ordinarily the question whether a given act or omission was the proximate cause of an injury is for the jury, but where the facts are undisputed, and the court can see that the resulting injury was not probable but remote, it is the duty of the court to determine the question of proximate cause and not send it to a jury.

2. DAMAGES--Injury by Fire--Proximate Cause--Evidence. In an action to recover damages for the loss of drilling-tools and machinery by fire at a well, resulting from an explosion of flowing oil and gas, where the only negligence charged is that the owners of the well caused the same to be shot with nitroglycerin late in the evening instead of waiting until the following day, and failed to take precautions before shooting the well to have the same capped and connected with a tank, and failed to leave a suitable person in charge of the well during the night, and the evidence shows that the explosion occurred about nine o'clock in the night-time, when no one was present, that there was no fire about the premises, and there is no evidence showing how the escaping oil and gas came in contact with fire, and nothing to show what the immediate or direct cause of the explosion was, held, that the alleged acts of negligence were the remote and not the proximate cause of the injury, that the proximate cause was necessarily some independent agency, that the acts of the defendants did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, and that on the undisputed facts a demurrer to the evidence should have been sustained.

D. E. Rathbun, for plaintiffs in error.

W. H. Sproul, and N.E. Van Tuyl, for defendants in error.

OPINION

PORTER, J.:

The main contention is that the demurrer should have been sustained. The reasons presented in the brief in support of this claim are far from convincing. We have not, for instance, been able to discover in what way contributory negligence, assumption of risk or the doctrine of "the last clear chance," which are urged at length and supplemented with numerous citations, can be said to have any application to the facts. We have no hesitation, however, in concluding that the demurrer should have been sustained.

There were no special findings, but it is apparent that the act of the defendants in shooting the well in the evening was not the proximate cause of the fire. There is nothing in the evidence to warrant the assumption that the same result might not have occurred if the shooting had been postponed to the following day, nor is there any evidence that it is negligence to shoot a well in the evening. Again, notwithstanding the absence of any findings, it is obvious that there must have been some intervening, direct cause for the explosion; the escaping gas must necessarily have come in contact with fire. The evidence does not disclose, nor does the petition allege, what was the direct cause. The explosion may have been brought about by a stroke of lightning, or by the merest accident, or by the intentional or careless act of some person for whose conduct the defendants were in no way responsible. Whatever the direct cause may have been, it was obviously unrelated in its operation to the act of the defendants in shooting the well in the evening, or in failing to cap the well and pipe the gas to a tank, or to their failure to have some person on the ground watching the premises.

The case therefore falls within the doctrine of Railway Co v. Columbia, 65 Kan. 390, 69 P. 338, 58 L. R. A. 399. In that case a locomotive fireman lost his life by the derailment of his engine. The railway company had permitted several heavy grain-doors to be piled and to remain on a...