Wise v. Standard Oil Co.

• Decision Date: 13 January 1947
• Docket Number: No. 20838.,20838.
• Citation: 198 S.W.2d 1014
• Parties: WISE v. STANDARD OIL CO. OF INDIANA.
• Court: Missouri Court of Appeals

198 S.W.2d 1014

WISE v. STANDARD OIL CO. OF INDIANA.

No. 20838.

Kansas City Court of Appeals. Missouri.

January 13, 1947.

Appeal from Circuit Court, Buchanan County; Emmett J. Crouse, Judge.

Action by William A. Wise against Standard Oil Company of Indiana, a corporation, to recover damages because of the alleged frightening and stampeding of plaintiff's steers by defendant's pipe line employees. From a judgment for the defendant, the plaintiff appeals.

Judgment reversed and cause remanded.

Maurice Pope and Boyd & Elliott, all of St. Joseph, for appellant.

Roscoe P. Conkling, Floyd M. Sprague, Chas. S. Wilcox and Conkling & Sprague, all of St. Joseph, for respondent.

BLAND, Presiding Judge.

This is an action for damages, suffered on account of the alleged frightening and stampeding of plaintiff's steers by defendant's pipe line employees. At the conclusion of plaintiff's testimony the court sustained defendant's motion for a directed verdict, resulting in a verdict and judgment in favor of defendant. Plaintiff has appealed.

The facts show that plaintiff is engaged in farming and the feeding of cattle on his farm located near Savannah; that on the north side of the farm there is an east and west public road; that plaintiff's house fronts toward the north and is on the north side of his farm about ¼ of a mile east of the west line thereof; that there is a front porch on the north and a back porch on the south side of the house; that about 3 city blocks southeast of the house there is a feed lot consisting of 6 or 7 acres, where the steers in controversy were enclosed; that northwest of and adjoining the feed lot is a corn or alfalfa field; that defendant maintains a pipe line through the south and west part of the feed lot, crossing one corner thereof, thence crossing the corn or alfalfa field and the public road.

In constructing its underground pipe line defendant built a stile at each fence under which the pipe line crossed, and immediately over the line, for the purpose of protecting the fence and facilitating the climbing over of it. These stiles consist of two pieces each with two steps, one piece having been set on each side of the fence, and these are joined to a center piece over which a top piece runs through the fence. There are three stiles; one between the cornfield and the road; one between the field and the feed lot and one on the south side of the lot.

On March 7, 1941, plaintiff had 73 head of cattle in the feed lot. On that date plaintiff's grandson, one Spargur, was living at plaintiff's house. Plaintiff and his wife had gone to St. Joseph for the day and did not return until about 10:45 to 11:00 o'clock that night. The night was clear and the moon was "shining very bright". One could see a distance of 4 or 5 blocks "in nice shape".

Spargur testified that on the night in question he was in plaintiff's house; that through the window he saw a truck pass the house and travel east down the road to a small house located about 2 blocks east of the house; that he then stepped out on the front porch to see what was going on; that he saw the truck turn around and come back in a westwardly direction and stop at the stile between the road and the corn field; that there was a driver in the truck but he could not say as to any other man being in the truck; that he then went out on the back porch for a few minutes; that all he could see at that time was the truck which had stopped at the stile down the road east of the house; that he neither saw nor heard anything out of the ordinary in connection with the cattle which were quiet; that he believed the telephone rang and he went back into the house to answer it; that later, about 10:45 p.m., he stepped out on the back porch again and discovered a man walking along the pipe line toward the north and another man "in the act of climbing the stile. He was crossing the stile"; that the first man was walking on ahead; that the man who was climbing the stile came down therefrom and walked north along the pipe line; that both of them climbed the stile that led to the road, got into the truck and drove off; that when he came out on the back porch the cattle were disturbed; that the cattle had stampeded, crossed a deep gulley or ditch and were milling around in the northwest corner of the feed lot; that the man who was walking ahead in the field was proceeding parallel with, and right close to, a small mound of earth along where the pipe line had been laid; that he did not notice any lights; that the cattle continued to mill around; that plaintiff returned home a few minutes after the men had departed.

The witness further testified that he did not see either one of the two men so as to identify him or know who he was; that as to observing what the men were doing he couldn't say "they just seemed to be like they were walking the pipe line as I have seen them do other times (apparently in the daytime); that he could not say whether the truck had any name on it; that on other occasions he had seen trucks that looked "exactly like this one" which defendant's pipe line men used to haul their equipment; that he did not have any more definite knowledge or information as to what truck or whose truck it was than "it was a truck like I have seen pipe line men use before". (Italics ours.)

Plaintiff tesified that, as he was returning home on the night of March 7, 1941, he met a vehicle about one-half mile therefrom; that he had seen similar vehicles in that vicinity before known as pipe line vehicles; that he had seen similar trucks a number of times in the daylight but had never before seen one after night; that he had never seen any similar truck in that vicinity except those in charge of the defendant's pipe line people.

There was evidence that the probable effect of a stranger or strangers going in amongst a lot of steers of the kind in question in a feed lot in the night time would be to disturb and scare them.

Some years prior to the happening in controversy plaintiff and the defendant had entered into a contract providing that the defendant would agree to pay any damages caused by its operations, under the contract, to plaintiff's land, etc., and to plaintiff's livestock on said land.

Plaintiff insists that the court erred in sustaining defendant's motion for a directed verdict, for the reason that plaintiff made out a case tending to show that defendant's agent caused the livestock to be frightened and stampede, resulting in damage to them.

Defendant insists that there are four things that plaintiff was required to prove in order to make out a case: (1) that the men seen by Spargur were employees of the defendant: (2) that they entered the feed lot; (3) that they were inspecting the pipe line crossing said lot; (4) that they caused the cattle to stampede. Defendant says none of these things was proved.

We are of the opinion that there was substantial evidence, including inferences from the evidence, tending to show all four of these things. In the first place, we may say that none of the testimony that we have detailed was objected to by defendant. It is insisted by defendant that the truck was at least a block from the house and that Spargur's testimony that he had seen trucks before that looked exactly like the one in controversy in the vicinity of the pipe line (which other trucks were used to carry defendant's equipment and men) was a mere conclusion and his testimony, together with that of plaintiff to the effect that he had never seen any similar trucks except those of the defendant in that vicinity, is not substantial evidence that the truck in question was that of defendant.

Defendant says that if this had been a criminal case and Spargur had testified that he "believed that the truck he saw that night was a truck of defendant's, the same truck seen by him before" his testimony would have been of some probative force after he had stated why he believed that the truck he saw was the same, describing points of resemblance, etc.

It is true that Spargur's testimony, in this regard, was more or less a conclusion. We believe that the jury could have found that the visibility was sufficiently good for Spargur...