*1 BERRY. OIL CO. v. CONTINENTAL Texas. Fort
May 23, 1932. Rehearing July Granted Smedley Burney Braly, B.G. both of Worth,
Fort Nelson, E. Wichita O. appellant. Falls, for Hall, Henrietta, appellee. Loftin & DUNKLIN, J. Berry, plaintiff, Mrs. A. G. instituted Compa- this suit the Continental Oil defendant,
ny,
damages
to recover
for a de-
preciation in the market value of four lots in
Henrietta,
the town of
which she
her
home, by
well
used
water situated on
that
purposes.
her for domestic
It was
alleged
negligently per-
underground
mitted from
tanks of a
by defendant;
station owned
such an
extent as to
use,
render it unfit for
was
thereof,
permanently injured, and,
as the result
of her
value
home was
$1,250.
the sum of
also
that her
damaged by
gaso-
reason of fumes of
escaping
well, per-
line
meating her home
to such
^
constitute
nuisance.
presented
To that
the- defendant
general
general
demurrers and a
denial.
appeal
prosecuted by
has been
This
the de-
fendant
for
favor
upon findings
$475,
sum of
based
special issues,
in answer to
the
lows:
as fol-
“1.
Do
evidence that
from entered
well? Answer:
foregoing spe-
“If-
have answered the
‘No,’
cial
issues
not answer
*2
you
a
of
We shall not undertake
discussion
answered
further,
‘Yes,’
if
have
spe-
following-
testimony,
the
so to
would
you
the
entire
do
since
will answer
then
unduly prolong
opinion. However,
this
after
cial issue:
thorough
record,
a
consideration
vve
preponderance of
you
find
“2. Do
that
not
have reached the conclusion
we are
defendant, acting
that
the
the evidence
to sustain
authorized
the attacks made
employees,
agents,
or
through
servants
its
any
findings
jury
grounds
of
of
the
the
gasoline to
permitting
es-
negligent in
was
cape
urged.
true,
by
urged
appellant,
It
as
is
that
to show that
you
(if
equipment
found
have
from
testimony
specific
there
no
was
escape from defendant’s
gasoline did
that
permanent.
the
But we
thorized
nuisance would be
equipment)?
Yes.
Answer:
that
would
au
be
believe
the
preponderance
you
of
from
find'
“3. Do
true,
that
would
in
to infer
such
be
gasoline
seepage
from
of
that the
the evidence
any
by
showing
the absence of
defendant
the
premis-
plaintiff’s
equipment onto
defendant’s
that the nuisance had been abated or would
you
such
(if
that
was
there
found
have
es
future,
be abated in the
removal of
proximate cause
seepage)
and
the direct
gasoline
operating
the
tank or
so
it
toas
property?
damage
plaintiff’s
An-
any
of
to
seepage
any
plaintiff’s
avoid
therefrom to
swer:
well. Tlie
of the defendant tended
seepage
continuing
foregoing
to show
was still
that the
you
the
“If
answered
have
pollute
and
this,
to
such
‘no,’
you
but if
the
not
then
thereby
‘yes,’
render it unfit for at
some
least
then
the
answered
purposes.
following
domestic
issue:
the
will answer
or not
the
Whether
intended to aban
much,
any,
do
if
“4. How
gasoline
don use of
in
tank
future or
the
mar-
of
evidence
the
repair
prevent
leakage
to
therefrom was
it
as to
so
further
plaintiff’s
been
has
of
ket value
peculiarly
within its knowl
proximate result
damaged
of
a direct
as
edge,
and it failed to
seeping
gasoline
defendant’s
from
any
thereby
jury;
of
waiving
of those
to the
issues”
any?
well,
plaintiff’s
Answer:
into
if
right
to
here. Davis v.
the
$475.00.”
Etter & Curtis
W.
S.
op-
that
the
evidence showed
603,
cited; Ormsby
and authorities
there
equipped
an un-
with
station
erated a service
derground
242, S.W.(2d)
117 Tex.
gasoline,
storage
of
tank
the
opinion
And we are of
further that
the
plain-
approximately
from
460 feet
which was
tiff’s
pollution
plaintiff’s
of
the
from
the air in
home
sloping
intervening ground
well,
the
gases emanating
seepage
from
in
the
plaintiff’s
towards
station
the well could be considered
the
as
occupied
long
property,
been
had
which
evidence
the
com
nuisance
of
home.
as her
used
the
plained of.
by appellant,
an ex
is
In
filed
there
briefs
assigned
Error
of
has
action
the
testimony introduced
the
tended review of
upon
overruling
exception
the
court
defendant’s
argument
trial,
is made
submitted in the court’s
findings of
and all of the
that each
were
the
show that the
charge, as follows: “For the
that
overwhelming weight
contrary
of
question submitted in said issue whether
is
evidence introduced to
that
seepage
gasoline
or not
of
was the
of
cause
plaintiff’s
well was
‘any damage’
plaintiff’s
says
property,
gaso
by seepage
improper
that
is
said issue
and should not
nothing
than
amounted to
more-
tank
line
mere scintilla
per-
be submitted in that the
would be
of
and that the
mitted thereunder to
the defendant
find
verdict
that
value of
any damage
whatever was
permanently
without
proven
plaintiff’s property,
whereas the
any
support
it.
is insisted with
only damage alleged
and for
much earnestness
it could
sought
not
is
or
some
that
said
was evidence sufficient to
be
there
plaintiff’s property,
perma-
but is
that
the
came from the
of
warrant
destruction of
nent
the well.”
plaintiff’s
seep
water in
age
tank,
of
from
defendant’s
Whether or not
proof
total
of
absence
that
there
involved
issues:
two
permanent. First,
seepage
be
or
created would
whether
not the
dam
argued
aged
property; second,
that it
From other
in the event
just
infer reasonable to
an affirmative answer to
then
injury
other
sources
than whether or not
tank,
charge
Issue No. 3 of
rect
court’s
awas
cor
contrary
guess
presentation
ques
was a
first
mere
or
those
support
surmise,
And,
which was
sufficient to
if the
tions.
conjunctively
second had
submitted
finding citing
first,
Irvine,
with the
error could
Joske v.
Tex.
—
assigned
successfully