
    The Augusta Oil, Gas, Mining & Prospecting Company v. The Independence Drilling Company, a Partnership, etc., et al.
    
    No. 15,785.
    
      Evidence — Opinion Testimony — Province of the Jury. It was error to permit a witness to give an opinion upon a fact which it was the province of the jury to determine.
    Error from Butler district court; Granville P. Aikman, judge.
    Opinion filed May 8, 1909.
    Reversed.
    
      George J. Benson, and T. A. Kramer, for the plaintiff in error.
    
      Lelancl & Harris, and E. J. Lambert, for the defendants in error.
   Per Curiam:

The drilling company contracted with, the oil company to drill a well. The oil company was to furnish the casing and other appliances, while the duty of inspection of the appliances devolved on the drilling company. Before the well was completed it became obstructed so that it could not be drilled further, and the drilling company sought to recover for the work done, on the theory that the suspension of work was due to the fault of the oil company. On one side it was claimed that the casing furnished was not sufficiently thick and strong to withstand the pressure of the water, and that it collapsed and obstructed the drilling of the well. On the other side it was claimed, among other things, that the obstruction was below the disc in the well, where the pressure of the water on the inside counterbalanced the pressure from the outside, and that the trouble was not because of insufficient casing but was due to some defect or irregularity in drilling the well.

»In the trial a witness was asked the question, “What, in your judgment, was the trouble; was that in the bottom of this well?” And over objection he answered: “That casing caused the trouble; it was too light.” The admission of this evidence was material error. The witness had had experience in drilling wells and was competent to testify to the strength of the pipe, the extent of the pressure it would withstand, and the like, and also as to the way the drill and other appliances worked when he tested them, and the jury might have inferred from this and other testimony the cause of the trouble; but he should not have been permitted to give an opinion on the issue the jury were called to decide.

“The opinion of witnesses is only admissible upon the ground of necessity, but can never be given upon the ultimate facts which it is the duty of the jury to determine.” (Erb v. Popritz, 59 Kan. 264, 270.)

(See, also, K. P. Rly. Co. v. Peavey, 29 Kan. 169; Telephone Co. v. Vandervort, 67 Kan. 269.)

As the admission of this testimony was prejudicial error, it is unnecessary to consider the other assignments. The judgment is reversed and the cause remanded for a new trial.  