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Negligence, § 21 mines

liability for negligently "shooting" oil well. 1. One who undertakes, pursuant to an oral agreement, "to shoot" an oil well by the use of nitroglycerin for another, comes into such a relation to the owner of the well that he may be held liable in tort in case he performs the services incumbent upon him by reason of such agreement in so negligent a manner as to damage or destroy the oil well. [See annotation on this question beginning on page 341.]

Action, § 65 form- negligent performance of contract.

2. Where the transaction complained of had its origin in a contract which places the parties in such a relation that in attempting to perform the promised service the tort was committed then the breach of contract is not the gravamen of the action. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action ex delicto, and not an action ex contractu.

[See 1 R. C. L. 321, 322; 1 R. C. L. Supp. 102.]

Limitation of actions, § 201 statute applicable.

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3. In this case plaintiff's petition discloses that the transaction

Headnotes by JONES, C.

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plained of, and the injury sustained, resulting in damages, was the result of the negligent and unskilful manner in which the operator attempted to perform the services of "shooting" the well incumbent upon him by reason of the contract, and the damages sought to be recovered are necessarily based upon the negligent acts of the defendant, and not upon a breach of the contract. Hence, we hold that the third subdivision of § 185, Comp. Stat. 1921, providing that certain character of actions shall be brought within two years, controls in this case, rather than the second subdivision of said section, which provides that "an action upon a contract, express or implied, not in writing," can only be brought within three years from the time when the cause of action arose.

ERROR to the District Court for Creek County (Eagleton, J.) to review a judgment dismissing a petition filed to recover damages alleged to have been caused by defendant's negligence and unskilfulness in shooting an oil well. Affirmed.

The facts are stated in the Commissioner's opinion. Messrs. Thrift & Davenport for plaintiffs in error.

Messrs. G. C. Spillers and Donald Prentice, for defendant in error:

The action was one based upon tort, and therefore barred by the Statute of Limitations.

Herron v. Miller, 96 Okla. 59, 220 Pac. 36; Ft. Smith & W. R. Co. v. Ford, 34 Okla. 575, 41 L.R.A. (N.S.) 745, 126 Pac. 745; Southwestern Cotton Seed Oil Co. v. Stribling, 18 Okla. 417, 89 Pac. 1129; Carter Oil Co. v. Independent Torpedo Co. 107 Okla. 209, 232 Pac.

419; Eastern Torpedo of Ohio Co. v. Shelts, Okla., 247 Pac. 974; Bean v. Independent Torpedo Co. (C. C. A. 8th) 4 F. (2d) 504; Canaday v. United R. Co. 134 Mo. App. 282, 114 S. W. 88; Harding v. Liberty Hospital Corp. 177 Cal. 520, 171 Pac. 98; Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 41 L. ed. 485, 17 Sup. Ct. Rep. 120; Mobile L. Ins. Co. v. Randall, 74 Ala. 170; Wilkinson v. Mosely, 18 Ala. 288; Marty v. Somers, 35 Cal. App. 182, 169 Pac. 411; Hales v. Raines, 146 Mo. App. 232, 130 S. W. 425; Hall v. Steele, 193 Cal. 602,

(117 Okla. 245, 246 Pac. 426.)

226 Pac. 854; Kelsey v. Tracy, 42 Cal. App. 409, 183 Pac. 668; Whittle v. Miller Lightning Rod Co. 110 S. C. 557, 96 S. E. 907; Levy Bros. v. Western U. Teleg. Co. 39 Okla. 416, 135 Pac. 423; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Flint & W. Mfg. Co. v. Beckett, 167 Ind. 491, 12 L.R.A. (N.S.) 924, 79 N. E. 503; Stanley v. Bircher, 78 Mo. 245; Central of Georgia R. Co. v. Chicago Portrait Co. 122 Ga. 11, 106 Am. St. Rep. 87, 49 S. E. 727; Texarkana & Ft. S. R. Co. v. Rosebrook-Josey Grain Co. 52 Tex. Civ. App. 156, 114 S. W. 437. Jones, C., filed the following opinion:

This action was instituted in the district court of Creek county by the plaintiffs in error, as plaintiffs, against the defendant in error, as defendant, to recover certain sums of money as damages. Upon the trial of the case the defendant interposed an objection to the introduction of evidence on the part of the plaintiffs for the reason "that the petition showed on its face the cause of action, if any, is barred by the statute of limitation."

This objection was sustained by the trial court, and plaintiffs' petition dismissed. It appears from the allegation of plaintiffs' petition that the plaintiffs were the owners of and operating an oil well which was producing about 25 barrels of oil per day, and that plaintiffs employed the defendant, Central Torpedo Company, to "shoot" the well in order, if possible, to increase the production thereof. The defendant company promised and agreed to perform said services for a consideration of $61. Plaintiffs further allege that said defendant "held itself out to the public and to those plaintiffs as being qualified and expert in the performance of the duty of shooting oil wells," and that there was an implied contract that defendants would shoot said oil well in the customary manner and that the customary way of performing such services was "to lower into the well a line known as a torpedo line, to which is attached what is known as a shell containing nitroglycerin, and to get shell at the

bottom of the well and in the oilproducing sand, and at said last place to cause said nitroglycerin to be exploded in order to increase the production in the oil-bearing sand; that it is likewise the custom of said torpedo company to lower the shell to which the torpedo line is attached into the well by operating hand reels, in order that the said shell may be lowered slowly and always under the absolute control of the shooter."

Plaintiffs further allege that said company acting through its agent, Oscar Bond, negligently and carelessly performed its duty and breached the contract of employment in that it undertook to lower a shell, containing ten quarts of nitroglycerin, in said well by attaching same to a short piece of torpedo line about 15 feet long, and that said line was attached to the bailer, which was attached to the sand line, and that same was lowered into the well by the operation of the sand reels, which appear to be a part of the oil well rigging which is operated by the engine attached to said machinery, and in a manner not customary in the performance of said services; that by reason of the vibration caused by the sand line and bailer, the cap containing the nitroglycerin was unhooked, or became detached, from the bailer at a distance of about 600 feet from the top of the well, and fell a distance of about 1,500 feet, striking the surface of the oil, which stood about 500 feet from the bottom of the well, and that the nitroglycerin was caused to explode at that point, and that the explosion bursted and destroyed the casing, and that the plaintiffs were required and did expend large sums of money in an effort to repair the injuries sustained by reason of the explosion; that by reason of the bursting or splitting of the casing the water was permitted to come into the oil-bearing sand in said hole, and that their efforts to save or recover the well were futile, and the well was totally destroyed and lost. They further allege as damages the

value or cost of drilling another well of the same depth as the well destroyed in that vicinity, and the value of the well as it stood at the time defendant attempted to shoot same. The damages alleged in the aggregate exceed $40,000.

The court sutained the objections to the introduction of evidence upon the theory that the petition shows that the plaintiffs' action is one in tort, based on the carelessness and negligence of the defendant in attempting to carry out the contract, and is barred by the two-year statute of limitations as set forth in one of the paragraphs of § 185, Comp. Stat. 1921, as follows: "Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud -the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."

On the other hand the appellants contend that their action is based upon the contract of employment to shoot the well, and that the following paragraph of § 185, supra, should control: "Within three years: An action upon a contract express or implied, not in writing; an action upon a liability created by statute, other than a forfeiture or penalty."

This suit was instituted more than two years and less than three years from the time when the cause of action arose, and the trial court was of the opinion that it was an action in tort, and not upon contract, and therefore barred by the twoyear statute of limitation.

The appellant relies on the case of Howard v. Ritchie, 9 Kan. 102. This opinion does not discuss the facts in so far as the nature of the case is concerned, but holds that the trial court was in error in applying the two-year statute of limitation "for taking, detaining or injuring person

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and that "the fact that the breach of the contract resulted in injury to specific personal property would not reduce the time within which an action might be brought below that which a party would have in case of any other breach of contract. That time, if the contract be in writing, is five years, otherwise, three, and reversed the judgment of the trial court. This author

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ity apparently sup- Negligenceports the contention for negligently of appellants, but well. the great weight of authority seems to be to the contrary.

The case of Herron v. Miller, 96 Okla. 59, 220 Pac. 36, which was a suit for damages against the defendant for failure to deliver the plaintiff at her proper destination according to the contract of transportation, and in the body of the opinion we find this language: "The contract of transportation was mentioned in the petition, but simply as an inducement for the action and as showing that the plaintiff was rightfully upon a train at the time of the injury; but the action itself and the damages which plaintiff sought to recover were based not upon breach of contract of transportation, but upon the negligent disregard of the duty which the defendant owed to the plaintiff."

The case of Ft. Smith & W. R. Co. v. Ford, 34 Okla. 575, 41 L.R.A. (N. S.) 745, 126 Pac. 745, and numerous other authorities are cited in support of this rule. Some question might be raised as to whether or not rules which govern in suits against common carriers would be applicable in cases of this character, for the reason that the right of transportation is not governed, alone, by the contract entered into by the passenger and the railway company; railway companies transport passengers in conformity to a duty to the public as common carriers, and not necessarily because of the contract entered into by reason of the sale of a ticket, but we find

(117 Okla. 245, 246 Pac. 426.) another line of authorities which are more directly in point.

The case of Flint & W. Mfg. Co. v. Beckett, 12 L.R.A. (N.S.) 924, [167 Ind. 491, 79 N. E. 503], is a case which appears to us to be very much in point. There the appellant had sold to the appellee a windmill, and entered into a contract to install same on the barn of the appellee, and it was alleged that said windmill was not properly installed, and that by reason of the negligent and careless manner in which appellant installed same it fell upon the barn and materially injured same, and the appellee, plaintiff in the trial court, brought a suit in damages based upon the negligence of appellant in installing said windmill. The appellant contended that the only that the only duty it owed to appellee arose out of contract, and that, as appellant was not engaged in a public employment, its obligation could only be enforced by an action on the contract for a breach thereof, but the Supreme Court of Indiana held to the contrary, and in the first paragraph of the syllabus held: "One who undertakes to erect a windmill on another's building comes into such a relation to him that he may be held liable in tort in case he does his work so negligently that the mill falls and injures the building.'

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And in the notes to said opinion on page 925 the rule is announced as follows: "If the transaction complained of had its origin in a contract which placed the parties in such a relation that, in attempting to perform the promised service, the tort was committed, then the breach of the contract is not the gravamen of the suit. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort,

Action-formnegligent performance of contract.

and in all such cases the remedy is an action on the case. For illustration, take the contract of a carpenter to repair a house, the implication of his contract is that he will bring to the service reasonable skill, good faith, and diligence. If he fails to do the work, or leaves the house incomplete, the only remedy against him is ex contractu; but suppose he, by want of care or skill, destroys or wastes material, or makes the repairs so unskillfully as to damage other portions of the house; this is tort, for which the contract only furnished the occasion. Mobile L. Ins. Co. v. Randall, 74 Ala. 170."

This seems to be the correct rule, and, in the instant case, we are inclined to the opinion that no cause of action arose by reason of a breach of the contract. The defendant was attempting to perform the contract, but performed it in an unskillful and negligent manner, and the injuries resulting were not the result of a breach of contract, but the result of

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Some authorities go to the extent of holding that under some conditions both an action ex delicto and ex contractu will lie, and that the plaintiffs may elect, but from the nature of the injuries here complained of we can conceive of no element of damage that might be based upon a breach of the contract; hence we conclude that the trial court was correct in holding that this action is one based upon tort and not upon breach of contract, and that the two-year statute of limitation applies rather than the three-year statute. We therefore hold that the judgment of the trial court should be and the same is hereby affirmed.

ANNOTATION.

Liability for damage to oil well by one employed to "shoot" it.
[Negligence, § 21.]

The use of explosive material in a

well to increase its flow of oil appears

to be a common practice in oil fields. The work has become a regular busi

ness of contractors, whose services are engaged for this special purpose. Though there are only a few cases passing on their liability for damage done to the well in the process, several of the rules ordinarily adopted in negligence cases have been applied.

A person who contracts to produce an explosion in an oil well for the purpose of increasing its flow is bound to exercise the ordinary skill and care appertaining to the business, and avail himself of the usual appliances to guard against injury to the property on which he is working. Donnan v. Pennsylvania Torpedo Co. (1904) 26 Pa. Super. Ct. 324.

For negligence in the performance of his work, which results in damage to the well, he is liable. Kepple v. Pennsylvania Torpedo Co. (1898) 7 Pa. Super. Ct. 620; Donnan v. Pennsylvania Torpedo Co. (Pa.) supra. See also the reported case (JACKSON V. CENTRAL TORPEDO Co. ante, 338).

It is not essential, however, to the liability of a person so employed, that the damage occurs while he is performing his work. Recovery for an explosion and damage to an oil well, from a person employed to explode a torpedo in the well in order to increase its flow, may be based on negligence in failing to explode the torpedo, and directing another contractor to proceed with his work in the well. Kepple v. Pennsylvania Torpedo Co. (Pa.) supra. In that case it appeared that the explosion damaging the well occurred after the work of drilling the well was resumed. In affirming a judgment against the torpedo company, the court said: "The evidence clearly shows, both by the intimation that the torpedo had become unhooked during the process of lowering it and the distinct declaration that it had not exploded after the 'go-devil' had been dropped, that unusual care was necessary. Defendant's agent, however, confidently expressed the opinion that the explosion had taken place, and directed the well contractor to lower his bailer. If he meant by this that he should proceed to do his part of the work, it was evidence of his being entirely satisfied that he had discharged

his duty to the plaintiffs. He gave no intimation to the contrary, he made no examination and took no precautions himself, but left the well in the hands of the other contractor as though the duty of the defendant had been completely discharged. Whether or not he was justified in so doing was a question of fact for the jury, and we can see no impropriety, so far as the rights of the defendant are concerned, in the manner in which it was submitted by the court."

On the other hand, the person engaged to "shoot" the well is ordinarily not liable for damage to the well, in the absence of negligence. Davidson v. Humes (1898) 188 Pa. 335, 41 Atl. 649; Zahniser v. Pennsylvania Torpedo Co. (1899) 190 Pa. 350, 42 Atl. 707.

If there is no negligence in the performance of the work, and no contract that there would be no injury resulting from the work, a person employed to "shoot" a well is not liable for damage done to the well by an explosion while he is attempting to "shoot" it. Davidson v. Humes (Pa.) supra.

In the reported case (JACKSON V. CENTRAL TORPEDO Co.) it is held that the gravamen of an action for a negligent injury to an oil well, in the performance of a contract to "shoot" the well, is the tort committed, not the breach of contract, and that, therefore, the Statute of Limitations for tort actions is applicable.

Ordinarily the owner of the well must prove negligence, in the kind of cases treated in this annotation, in order to recover. The doctrine of res ipsa loquitur is not applicable. Zahniser v. Pennsylvania Torpedo Co. (1899) 190 Pa. 350, 42 Atl. 707. See also Texas Pacific Coal & Oil Co. v. Comanche Duke Oil Co. (1925) — Tex. Civ. App. —, 274 S. W. 193, holding that the doctrine of res ipsa loquitur was not applicable in an action for damage to an oil well from exploding a large quantity of nitroglycerin in an offset well located on another tract of land.

In Zahniser v. Pennsylvania Torpedo Co. (Pa.) supra, the court said: "There was no evidence that the result

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