
    Hall v. Meister et al.
    (Decided March 7, 1932.)
    
      Mr. C. T. O’Neill and Mr. C. G. Middleswart, for plaintiff in error.
    
      Messrs. Btrecker & Williamson, for defendants in error.
   Mauck, P. J.

Joseph R. Hall by his petition in the common pleas set up his ownership of a farm in Washington county on which the defendants had an oil lease under which they were producing oil during the year 1929. He alleged that the defendants pumped oil mixed with salt water from the well to receiving tanks, and that there was a back flow of the mixed oil and salt water which escaped from pipes through a worn and decayed nipple onto the lands of the plaintiff; that the plaintiff was using these lands to pasture his cattle and sheep; that the cattle and sheep drank this fluid, became sick, and died because the fluid was inherently poison to them. The action of the. defendants in permitting the escape of this fluid is characterized as reckless, careless, and negligent. Damages were sought for the injury to the live stock. The defendants answered by a general denial and trial was had resulting in a directed verdict for the defendants. The plaintiff seeks to reverse the judgment entered on that verdict.

The evidence tends to show negligent operation on the part of the defendants, and if this were the sole question the case was one which would have required submission to the jury. The direction of the verdict by the trial court was predicated, however, upon the plaintiff’s own testimony, which showed that long prior to the time when his cattle sickened and died he was aware not only of the presence of this fluid on his property and its accessibility to his cattle but was aware also of their likelihood to drink it and of its poisonous nature to them. The evidence unmistakably shows that he deliberately exposed his stock to this peril with the manifest purpose of suffering a loss for which he would be compensated by the defendants. Manifestly, if this is a case of simple negligence, the plaintiff could not recover because of his contributory negligence. He now claims, however, that under the doctrine of Payne, Dir. Genl. of Rds., v. Vance, 103 Ohio St., 59, 133 N. E., 85, the defendants were guilty of willful and wanton negligence and that the defense of contributory negligence cannot be invoked by one who has willfully or wantonly injured another.

The Vance case points out the difference between a liability resulting from simple negligence and the willful or wanton torts of another. It would seem that the very difference pointed out in the Vance case would require one relying upon making proof of willful and wanton acts to plead such facts as would remove the case from one of the field of simple negligence to the different field of willfulness or wantonness. There is nothing in the petition to indicate that plaintiff sought to recover upon anything save simple negligence except the use by him of the word “reckless,” and it is not in our judgment sufficient to convert the case into one of willfulness and wantonness by adding that word to the other language used to describe the defendants’ negligence.

The plaintiff, however, could not in this case recover if in fact he had pleaded and had proved a case of the kind now claimed for him. Conceding for the purpose of this opinion that the defendants were guilty of a wanton violation of the plaintiff’s right, it is abundantly clear that the plaintiff was altogether willful in courting the damages that he suffered. He deliberately exposed his live stock to a dangerous substance which he at the time knew that they would drink and that they would be poisoned thereby.

In a note to Spillers v. Griffen, L. R. A., 1918D, 1195, the editor has gathered numerous cases, all of which with the exception of those in Alabama hold that willful or wanton conduct on the part of the injured person prevents recovery in an action based on the willful or wanton conduct of the defendant. Of like import is the collection of authorities in the note to Hinkle v. Minneapolis, Anoka & Cuyuna Range Ry. Co., 41 A. L. R., 1379.

The plaintiff’s conduct constituted an insuperable bar to recovery upon any theory of the case.

Judgment affirmed.

Middleton and Blosseb, JJ., concur.  