BAYLESS, J.
The plaintiff in error, Shell Petroleum Corporation, a corporation, a defendant below, appeals from a judgment, based upon the verdict of a jury in the district court of Payne county, Okla., against it and in favor of George A. Wilson et al., defendants in error herein, but plaintiffs below. Other parties were also defendants below, but need not be considered in the determination of this cause. The parties will be referred to as they appeared below.
The defendant states in its brief that the evidence upon the question of damages and the amount thereof is in conflict and there is sufficient evidence reasonably tending to support the verdict of the jury; and, therefore, it presents no error thereon. It limits its argument upon appeal to one general proposition : There is no legal liability on its part for any damages which the plaintiffs suffered under the facts shown in this ease.
The following salient facts are undisputed:
(1) Defendant owned a quarter section of land adjacent to a quarter section of land owned by the plaintiffs.
(2) Defendant used its land as a tank farm and stored thereon oil produced by it and purchased by it elsewhere; and on the southwest 40 acres of the said land it had a large earthen tank into which it drained from the storage tanks a substance referred to in the record as “B. S. & W.” This substance was described in the testimony as an emulsified substance composed of oil, sediment, water, and waste materials incident to the production and storage of crude oil. The evidence further established that this substance contained valuable elements which could be recovered by a chemical process and could be sold.
(3) That defendant accumulated about 80,000 barrels or more of this substance in this earthen tank.
(4) That on the 12th day of June, 1931, defendant entered into a written contract with General Oil Salvage Company, a co-partnership, which will be referred to hereinafter as General, for the disposal of this substance. (We do not at this point determine whether the contract constituted a sale or created the relation of master and servant or principal and agent between the contracting parties.)
(5) General thereafter went upon the land and began treating this substance for the recovery of its commercial contents,
and continued these operations for about six months, when a fire occurred, resulting in the destruction of the substance, and during the progress of which fire said substance boiled over the confines of the earthen pit and ran across the land of the plaintiffs.
(6) The plaintiffs operated a farm and dairy upon their property and claimed that as a result of the substance running over their land certain damages resulted to them.
The plaintiffs state the controlling issues and contentions raised by the plaintiffs as follows:
“First. That the defendant, having accumulated and impounded this substance upon its premises in such large quantities and over such a long period of time in violation of the statute, it could not escape liability for damages which might result from the future handling of this substance even by absolute sale and delivery of the substance.
“Second. That the contract they made with Wright and Davis did not constitute a sale of any kind, but was simply an agreement to sell, and that the sale and delivery was not consummated until the substance was treated and reclaimed and paid for by the vendees, Wright and Davis; and that Wright and Davis, by virtue of the contract, were nothing more than agents or employees of the defendant in the reclaiming and removing of the substance from its premises.”
The contentions of the defendant are contrary to these, of course, and its argument is divided info greater detail, but when it is finally considered, the contentions of the defendant are well comprehended within the two above quoted.
The negligence charged against the defendant in the pleadings of the plaintiffs, falls into three classes: (1) The storage of the substance in violation of certain statutes; (2) ilie negligent acts of General, the alleged agent, servant or employee; and (3) the joint or combined acts of negligence of the defendant and General, its agent, servant, or employee.
The plaintiffs contend that defendant was guilty of violating section 7969, O. O. S. 1921 (sec. 11580, O. S. 1931), when it impounded and kept this large quantity of substance in its earthen tank; and thereby became guilty of negligence per se.
We do not agree with this contention. It is well settled by the opinions of this court that the section above quoted does not prohibit the storage upon land, the fee of which is owned by the operator, of such substances therein mentioned and herein involved. In discussing a similar contention in the case of Tidal Oil Co. v. Pease, 153 Okla. 137, 231 P. 514, we said:
“To hold that operators could not * * * deposit same in pools or tanks on their own land, would in many cases render impossible development for oil and gas in fields where salt water is produced. It would result in depriving the owner of land of the right to use it to his own advantage where such use would in no way harm or injure others. It is only permitting oil or other inflammable products to escape into pools or tanks used for watering stock and located upon the lands of others or to flow into streams upon the premises of others, that the law is intended to prohibit. So with salt water. Subject to the rules of law with reference to due care, etc., the owner of land ought not to be prohibited from the full use and benefit thereof so long as he does not by such use injure or damage other persons.”
We have heretofore had occasion to discuss whether the storage of gasoline, a highly inflammable refined product from crude oil, was a nuisance per se, and we held, in Ferriman v. Turner, 99 Okla. 277, 227 P. 443, that it was not a nuisance per se unless the facts of the particular case were such as to make it so.
We are of the opinion that the storage of quantities of inflammable products or salt water from oil wells in proper receptacles generally and customarily used by the industry upon land owned by the owner of the product stored is not a nuisance per se, nor is it prohibited by law. Therefore, the first; ground of negligence relied upon by the plaintiffs is untenable.
We next address our attention to the third ground — the joint negligence of defendant and General. We find in the plaintiffs’ pleadings that they are charged with the failure to prevent the spread of the burning substance after it broke over the confines of the earthen tank, which it is asserted they had ample opportunity to do. A¥e have read the evidence in the record and there is no evidence to sustain this contention. The plaintiff George A. Wilson only mentioned the fire and its progress once in his testimony, and then in this manner: “There was a fire took place very near the line west on the Shell property and during the night sometime that boiled over and ran down through that creek and shut up all my water supply.” Therefore, plaintiffs can place no reliance upon this charge of negligence because of an absolute failure to establish it.
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BAYLESS, J.
The plaintiff in error, Shell Petroleum Corporation, a corporation, a defendant below, appeals from a judgment, based upon the verdict of a jury in the district court of Payne county, Okla., against it and in favor of George A. Wilson et al., defendants in error herein, but plaintiffs below. Other parties were also defendants below, but need not be considered in the determination of this cause. The parties will be referred to as they appeared below.
The defendant states in its brief that the evidence upon the question of damages and the amount thereof is in conflict and there is sufficient evidence reasonably tending to support the verdict of the jury; and, therefore, it presents no error thereon. It limits its argument upon appeal to one general proposition : There is no legal liability on its part for any damages which the plaintiffs suffered under the facts shown in this ease.
The following salient facts are undisputed:
(1) Defendant owned a quarter section of land adjacent to a quarter section of land owned by the plaintiffs.
(2) Defendant used its land as a tank farm and stored thereon oil produced by it and purchased by it elsewhere; and on the southwest 40 acres of the said land it had a large earthen tank into which it drained from the storage tanks a substance referred to in the record as “B. S. & W.” This substance was described in the testimony as an emulsified substance composed of oil, sediment, water, and waste materials incident to the production and storage of crude oil. The evidence further established that this substance contained valuable elements which could be recovered by a chemical process and could be sold.
(3) That defendant accumulated about 80,000 barrels or more of this substance in this earthen tank.
(4) That on the 12th day of June, 1931, defendant entered into a written contract with General Oil Salvage Company, a co-partnership, which will be referred to hereinafter as General, for the disposal of this substance. (We do not at this point determine whether the contract constituted a sale or created the relation of master and servant or principal and agent between the contracting parties.)
(5) General thereafter went upon the land and began treating this substance for the recovery of its commercial contents,
and continued these operations for about six months, when a fire occurred, resulting in the destruction of the substance, and during the progress of which fire said substance boiled over the confines of the earthen pit and ran across the land of the plaintiffs.
(6) The plaintiffs operated a farm and dairy upon their property and claimed that as a result of the substance running over their land certain damages resulted to them.
The plaintiffs state the controlling issues and contentions raised by the plaintiffs as follows:
“First. That the defendant, having accumulated and impounded this substance upon its premises in such large quantities and over such a long period of time in violation of the statute, it could not escape liability for damages which might result from the future handling of this substance even by absolute sale and delivery of the substance.
“Second. That the contract they made with Wright and Davis did not constitute a sale of any kind, but was simply an agreement to sell, and that the sale and delivery was not consummated until the substance was treated and reclaimed and paid for by the vendees, Wright and Davis; and that Wright and Davis, by virtue of the contract, were nothing more than agents or employees of the defendant in the reclaiming and removing of the substance from its premises.”
The contentions of the defendant are contrary to these, of course, and its argument is divided info greater detail, but when it is finally considered, the contentions of the defendant are well comprehended within the two above quoted.
The negligence charged against the defendant in the pleadings of the plaintiffs, falls into three classes: (1) The storage of the substance in violation of certain statutes; (2) ilie negligent acts of General, the alleged agent, servant or employee; and (3) the joint or combined acts of negligence of the defendant and General, its agent, servant, or employee.
The plaintiffs contend that defendant was guilty of violating section 7969, O. O. S. 1921 (sec. 11580, O. S. 1931), when it impounded and kept this large quantity of substance in its earthen tank; and thereby became guilty of negligence per se.
We do not agree with this contention. It is well settled by the opinions of this court that the section above quoted does not prohibit the storage upon land, the fee of which is owned by the operator, of such substances therein mentioned and herein involved. In discussing a similar contention in the case of Tidal Oil Co. v. Pease, 153 Okla. 137, 231 P. 514, we said:
“To hold that operators could not * * * deposit same in pools or tanks on their own land, would in many cases render impossible development for oil and gas in fields where salt water is produced. It would result in depriving the owner of land of the right to use it to his own advantage where such use would in no way harm or injure others. It is only permitting oil or other inflammable products to escape into pools or tanks used for watering stock and located upon the lands of others or to flow into streams upon the premises of others, that the law is intended to prohibit. So with salt water. Subject to the rules of law with reference to due care, etc., the owner of land ought not to be prohibited from the full use and benefit thereof so long as he does not by such use injure or damage other persons.”
We have heretofore had occasion to discuss whether the storage of gasoline, a highly inflammable refined product from crude oil, was a nuisance per se, and we held, in Ferriman v. Turner, 99 Okla. 277, 227 P. 443, that it was not a nuisance per se unless the facts of the particular case were such as to make it so.
We are of the opinion that the storage of quantities of inflammable products or salt water from oil wells in proper receptacles generally and customarily used by the industry upon land owned by the owner of the product stored is not a nuisance per se, nor is it prohibited by law. Therefore, the first; ground of negligence relied upon by the plaintiffs is untenable.
We next address our attention to the third ground — the joint negligence of defendant and General. We find in the plaintiffs’ pleadings that they are charged with the failure to prevent the spread of the burning substance after it broke over the confines of the earthen tank, which it is asserted they had ample opportunity to do. A¥e have read the evidence in the record and there is no evidence to sustain this contention. The plaintiff George A. Wilson only mentioned the fire and its progress once in his testimony, and then in this manner: “There was a fire took place very near the line west on the Shell property and during the night sometime that boiled over and ran down through that creek and shut up all my water supply.” Therefore, plaintiffs can place no reliance upon this charge of negligence because of an absolute failure to establish it.
This brings us to the second charge of negligence — the acts of negligence of General, the alleged agent, servant, or employee of defendant. Both defendant and General
denied that in their pleadings and evidence, but plaintiffs allege that this denial is ineffectual in the face of their contract.
AAe have studied the various provisions of this contract in an effort to ascertain what was the intent of the parties thereto. We are of the opinion that this contract constituted a sale of this substance by the defendant to General. AYe have heretofore held in this opinion that the accumulation of this quantity of this substance was legitimate, and it must necessarily follow that defendant might dispose of it and completely dissociate itself therefrom. Since it did not own this substance at the time it burned and escaped, and since it has not been shown that defendant was in any wise liable for the fire or escape as a physical fact, it follows that there is no legal, liability on the defendant upon the ground of ownership.
However, if we adopt the construction of the contract contended for by the plaintiffs and if we hold that the contract was not a sale but was merely a contract of employment or agency, the plaintiffs still cannot prevail.
It is clear from all of the testimony that no agent, servant, or employee of the defendant except General (conceding for the argument that General was defendant’s agent) was at or near this substance when it burned and escaped, nor is it shown that any other agent, servant, or employee of the defendant in any wise participated in, or contributed to, the physical facts of the fire and escape. AYe have conceded for the argument the agency of General; but General was a party to this action and charged jointly with the defendant in the negligence which caused the damage to the plaintiffs, and yet the jury exonerated General from any responsibility or liability therefor.
It is a well-settled rule of law that where a plaintiff’s cause of action is predicated on alleged acts of negligence of a servant, which in turn are attributable to the master under the rule of respondeat superior, and the servant is exonerated from blame, the employer is likewise exonerated. Consolidated Gas Utilities Co. v. Beatie, 167 Okla. 71, 27 P. (2d) 813, and the Oklahoma cases cited therein.
The judgment of the trial court is therefore reversed and the cause remanded to the trial court.
RILEY, BUSBY, AVELCH, PHELPS, CORN, and GIBSON, JJ., concur. McNEILL, C. X, and OSBORN, Y. C. X, dissent.