Warren Petroleum Corp. v. Martin

• Decision Date: 21 July 1954
• Docket Number: No. A-4585,A-4585
• Parties: WARREN PETROLEUM CORP. v. MARTIN.
• Court: Texas Supreme Court

Page 410

271 S.W.2d 410

153 Tex. 465

WARREN PETROLEUM CORP. v. MARTIN.

No. A-4585.

Supreme Court of Texas.

July 21, 1954.

Rehearing Denied Oct. 6, 1954.

Nelson, Montgomery, Robertson & Sellers, Wichita Falls, for petitioner.

Thornton & Thornton, Olney, for respondent.

SMITH, Justice.

The respondent, J. W. Martin, brought this suit against petitioner, Warren Petroleum Corporation, seeking damages growing out of the death and injury of cattle belonging to respondent as a result of negligence of the petitioner. Petitioner's motion for instructed verdict was overruled. The jury, in answer to special issues, found the petitioner guilty of negligence and the respondent not guilty of contributory negligence and assessed damages in the sum of $1,634.36. Judgment was entered in favor of respondent. That judgment has been affirmed by the Court of Civil Appeals for the Second Supreme Judicial District of Texas. 265 S.W.2d 199.

On July 14, 1948, and at all times involved herein, petitioner was the lessee and operator of an oil and gas lease covering a tract of land consisting of 155.7 acres situated in Young County, Texas. The oil and gas lease was in force and oil was being produced when respondent secured a surface lease on the same land from the owner thereof. The well was located on a tract of about 40 acres out of the larger tract. This tract was under fence and was the portion of land used by respondent as a pasture. Respondent's house and other improvements were within the 40 acre enclosure. The oil well, which was a 'pumper' at the time the alleged negligence and resulting damages occurred, was located about 1/4 mile from the house. Respondent had visited near the well many times. He knew the well and pump jack were not fenced and he also had heard that cattle would drink oil.

Respondent's cause of action charging negligence on the part of petitioner rests on the following allegation in his pleadings:

'That sometime on or near the first of July, 1952, the exact time of which is not known to plaintiff, but is known to defendant, the pumping equipment on such well was in such defective condition that crude oil pumped from such well belonging to defendant was thrown up and out from such pump, and that through the negligence of defendant, its agents, servants and employees, crude oil was permitted to escape from said well and to gather in pools on the ground near said well and in the cup at the head of such pump where such oil was available to and was reached by and consumed by cattle belonging to this plaintiff. That such cattle of plaintiff during the month of July and the exact times of which are not known to plaintiff, did get such oil and drink same, resulting in the loss and damage as hereinafter set out, and that the defendant was guilty of negligence in the operation, control and care of such lease and well, and in the following manner: In that the defendant permitted oil to escape from such well on the pumping equipment and on the surrounding ground in such quantities as that cattle belonging to plaintiff as hereinafter set out, could and did secure and drink such oil.'

No evidence was introduced to the effect that the pumping equipment was defective, and it was neither alleged nor proved that the petitioner was negligent in using defective equipment. Respondent's and petitioner's pleadings are silent on the question of whether or not petitioner used more land than was reasonably necessary to carry on the oil operations provided for in the oil and gas lease. It is equally true that no evidence was introduced and no issues were submitted to the jury on the question. The Court of Civil Appeals has held, in effect, that the sole fact that oil was found in two pools, one containing about one gallon, the other about one and one half gallons, located about five feet from the well sustains the finding of the jury that petitioner was negligent in permitting the oil to escape, and that such evidence is proof that the pump was defective. The Court of Civil Appeals goes further to hold that under Rule 279, there was a presumed finding by the trial court that the petitioner used more of the surface of the ground than was reasonably necessary for the operation of the oil and gas lease.

The mere fact that petitioner permitted oil to escape and form in small pools within 5 feet of the well, without any showing as to the manner in which the lease was being operated at the time, could not form the basis for a legal inference that such conduct constituted negligence. Neither can such fact be used as a basis for a presumed finding that the petitioner used more land than was reasonably...