Arnold v. The C. Hoffman & Son Milling Company

• Decision Date: 10 October 1914
• Docket Number: 18,962
• Citation: 143 P. 413,93 Kan. 54
• Court: Kansas Supreme Court
• Parties: L. D. ARNOLD, Appellant, v. THE C. HOFFMAN & SON MILLING COMPANY et al., Appellees

143 P. 413

93 Kan. 54

L. D. ARNOLD, Appellant, v. THE C. HOFFMAN & SON MILLING COMPANY et al., Appellees

No. 18,962

Supreme Court of Kansas

October 10, 1914

Decided July, 1914.

Appeal from Dickinson district court; ROSWELL L. KING, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MILL DAM--Flooding Land--Dam Not Proximate Cause of Overflow--Demurrer to Evidence Properly Sustained. An action was brought upon the approved theory that if the negligent acts of several persons, although acting independently of each other, concurrently result in injury to another, each of the wrongdoers is answerable for all of the resulting damages and may be sued jointly or separately, as the injured party may elect; but, held, under the testimony in the case, that the dam maintained by the defendant alleged to be a joint tort feasor did not contribute towards the overflow of plaintiff's land and was not the proximate cause of the injury for which the action was brought.

2. SAME--Evidence for Defense--Adduced on Cross-examination--Demurrer. The fact that a defendant may have asked a witness of the plaintiff, at the end of the cross-examination, a number of questions and thus obtained testimony in support of the defense will not deprive the defendant from challenging the sufficiency of plaintiff's testimony by a demurrer nor prevent the court from considering and deciding whether the evidence of the plaintiff was sufficient to prove a cause of action against the defendant.

E. C. Little, of Kansas City, and C. Elmer Rugh, of Abilene, for the appellant.

C. S. Crawford, and G. W. Hurd, both of Abilene, for the appellees.

OPINION

JOHNSTON, C. J.

L. D. Arnold, the appellant, brought this action against the appellees, The C. Hoffman & Son Milling Company, C. Hoffman, C. B. Hoffman, The Hoffman Elevator Company, and the Chicago, Rock Island & Pacific Railway Company, to recover damages resulting from an overflow of the Smoky Hill river and the destruction of his crops, caused, as it was alleged, by the joint action and wrong of the appellees. The case has been here before on appeal. (Arnold v. Milling Co., 86 Kan. 12, 119 P. 373.) Appellant alleged that he owned land on the Smoky Hill river; that the appellees, The C. Hoffman & Son Milling Company, C. Hoffman, C. B. Hoffman and the Hoffman Elevator Company, had unlawfully obstructed the flow of water by the maintenance of a dam at a height considerably above that to which it was first built in 1869 or 1870 by the appellee, C. Hoffman, and which was allowed by law; that the appellee, The Chicago, Rock Island & Pacific Railway Company, in building a bridge across the river at a point between the dam and appellant's farm had dumped one hundred carloads of rock across the river where its bridge was built and had constructed an embankment which operated to further dam the river; and that by reason of these obstructions the appellees, "operating jointly and contemporaneously," had, on or about June 10, 1908, unlawfully thrown the water back upon his farm and caused the destruction of his crops. Appellant asked $ 3000 actual damages and $ 1000 punitive damages. After evidence had been introduced by appellant in support of his allegations the appellees separately demurred to his evidence. The demurrers of C. Hoffman, C. B. Hoffman and The Hoffman Elevator Company were sustained and those of the C. Hoffman & Son Milling Company and The Chicago, Rock Island & Pacific Railway Company were overruled. Appellant was then advised by the court that he should elect to proceed either against the milling company or the railway company separately on the ground that there was no proof of "any joint and concurrent action" between them, but the appellant refused to elect, and the court, upon a reconsideration of the demurrer, sustained it also as to the milling company. These rulings appellant brings here for review. and the principal question appears to be whether or not the court rightly ruled on the demurrers interposed by appellees.

There appears to be no testimony in the record tending to show that in 1908 C. B. Hoffman or the Hoffman Elevator Company maintained, controlled or had any connection with the dam which, it is alleged, resulted in throwing the water back on appellant's land, and it is clear that as to them the demurrers to the evidence were rightly sustained. The C. Hoffman & Son Milling Company owned and held possession of the dam at the time of the flood of 1908, and it is contended that testimony was offered tending to show that the maintenance of the dam by this company contributed to the injury suffered by the appellant. On the first appeal it was held that:

"Where two or more parties, acting jointly, wrong or injure another they are jointly and severally liable for the consequences, and the injured party may at his option sue in one action one or all who contributed to the injury." ( Arnold v. Milling Co., 86 Kan. 12, syl. P 1, 119 P. 373.)

The ruling therein made is challenged in this proceeding by appellee milling company as being out of line with the authorities, but we do not feel justified in reopening the discussion of a question so long settled in this state...