Benson v. City of St. Louis

• Decision Date: 02 March 1920
• Docket Number: No. 20767.,20767.
• Citation: 219 S.W. 575
• Parties: BENSON v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

219 S.W. 575

BENSON v. CITY OF ST. LOUIS et al.

No. 20767.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Action by W. R. Benson against the City of St. Louis and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Taylor R. Young, of St. Louis, and T. T. Hinde, of Madison, Ill., for appellant.

Eliot, Chaplin, Blayney & Bedal, of St. Louis, for respondent Hydraulic Press Brick Co.

A. & J. F. Lee, of St. Louis, for respondent Evens & Howard Fire Brick Co.

Jesse A. McDonald, of St. Louis, for respondent Laclede-Christy Clay Products Co.

Jourdan, Rassieur & Pierce, of St. Louis, for respondents Scullin Steel Co. and Progress Press Brick & Mach. Co.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for respondents receivers of St. Louis & S. F. R. R.

Charles W. Bates, T. E. Francis, and Chauncey H. Clarke, all of St. Louis, for respondent United Rys. Co. of St. Louis.

Jas. F. Green and H. H. Larimore, both of St. Louis, for respondent Bush.

GRAVES, J.

Plaintiff, for himself and as assignee of 27 other parties similarly situated, sued for damages to property (both personal and real) occasioned by an overflow of the River des Peres. Learned counsel for plaintiff thus summarizes their petition, and the court's action thereon:

"The appellant plaintiff, in his own original right and as assignee of numerous other rights, has filed suit against numerous defendants jointly, seeking to recover damages caused by an overflow of a stream which is a natural water course running through the city of St. Louis, known as River des Peres. The amended petition sets out the character of the stream and the well-known fact of its rapid rise during periods of heavy rainfall for years past, and that the defendants severally had full knowledge of this fact; that said stream, prior to the encroachments made by the defendants, had a well-defined bed and well-defined banks; that defendants are owners of land on either side of said stream, using the same on which they pursue their several lines of business; that each of said defendants had for some time prior to the injury complained of encroached upon the channel a said stream in divers manners, which is not here necessary to set out, further than to state that each acted independently of the other, but that each had knowledge of the acts of the other in the several encroachments set out in the petition; and that each had knowledge that each of said encroachments did contribute and would contribute to cause the overflow and damage.

To this petition the several defendants filed their respective demurrers, each specifying two or more grounds therefor; two of the grounds in each of said demurrers being that (a) several causes of action have been improperly united, and (b) the petition does not state facts sufficient to constitute a cause of action. Each of said demurrers was by the trial court sustained, on the sole ground that several causes of action have been improperly united in the petition."

By additional abstracts of the record (not refuted or questioned here) the accuracy of counsel's statement to the effect that the demurrers were sustained on a single ground, is brought into question. So, also, these additional abstracts tend to show that all defendants had been dismissed from court, except the receivers for the St. Louis & San Francisco Railroad Company, and were not in court when the judgment appealed from was entered. With the view we have of the law, these additional abstracts are not very material. In other words, the real question which plaintiff insists upon having determined can be settled without a consideration of any question except the ruling of the trial court upon the several demurrers. Not only so, but it may be settled upon the single ground of the demurrer, which plaintiff urges was the sole ground sustained by the trial court.

Counsel for plaintiff state the matter in words as follows:

"The theory on which the court sustained the demurrers was that, not only does the petition state a cause of action, but that it states numerous causes which have been improperly united; that although the wrongful act of each defendant contributed in a measure to the overflow which resulted in the damages complained of, and that each defendant knew or ought to have known that his or its act and the act of each of them would naturally contribute to the overflow and injury, yet, since each defendant acted independently of the other, they were improperly joined in the suit; and this is the question this court is now asked to pass upon."

This sufficiently outlines the case.

Opinion.

We see no use for a discussion of the question raised by the additional abstracts, nor by the motion of the United Railways Company to dismiss the appeal. If we view the law of this state correctly, the trial court was right in sustaining the demurrers of the several defendants on the ground that they had been improperly joined as defendants in this legal action for damages. A consideration of the other questions would give them no more relief. It may be that the defendants, or some of them, have a final judgment on demurrer, which has not been appealed from; but, if so, they can enter a plea of former adjudication, if sued again. We do not now say that such is the case.

Under any theory of the record, the trial court has sustained demurrers, for the reason that the defendants were improperly joined as defendants in this action. This ruling and the judgments entered thereon conforms to the written law of this state. The action is one at law, and not one in equity. In such case (a legal action) the suit should have been brought separately against the separate tortfeasors. The petition avers separate torts. It so reads, and learned counsel for plaintiff so construes it. Counsel concede that there was no joint tort. In the early case of Martinowsky v. City of Hannibal, 35 Mo. App. loc. cit. 77, Rombauer, P. J., said:

"When the act producing the injury is not joint, the party can be held responsible only to the extent of injuries inflicted by his own wrong, and a joint action against the parties, whose separate acts produced the wrong, cannot be brought. Were the rule otherwise, a person, who illegally throws some putrid matter into a highway, might be held legally responsible for the injuries caused by a pestilence that depopulates a city, simply because others, by similar illegal acts added to his own, created the nuisance which bred the pestilence."

To like effect is De Donato v. Morrison, 160 Mo. loc. cit. 591, 61 S. W. 644, wherein it is said:

"In 1 Shearman & Redfield (5th Ed.) §§ 122 and 123, it is said: `If several persons are jointly bound to perform a duty, they are jointly and severally liable for omitting to perform, or for performing it negligently. Persons who co-operate in an act directly causing injury are jointly and severally liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independently of each other. * * * Persons who act separately, each causing a separate injury, cannot be made jointly liable, even though the injuries thus committed are all inflicted at one time, and are precisely similar in character.'"

And in Chipman v. Palmer, 77 N. Y. loc. cit. 54, 33 Am. Rep. 566, it is said:

"The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tortfeasor should be liable for the acts of others with whom he is not acting in concert."

In harmony with these principles is the case of City of Independence v. Ott, 135 Mo. 301, 36 S. W. 624. In the later case of State ex rel. v. Dearing, 244 Mo. loc. cit. 32, 148 S. W. 619, the writer had...