Farley v. Crystal Coal & Coke Co.

• Decision Date: 17 February 1920
• Docket Number: 3925.
• Citation: 102 S.E. 265,85 W.Va. 595
• Parties: FARLEY v. CRYSTAL COAL & COKE CO. ET AL.
• Court: West Virginia Supreme Court

102 S.E. 265

85 W.Va. 595

FARLEY v. CRYSTAL COAL & COKE CO. ET AL.

No. 3925.

Supreme Court of Appeals of West Virginia.

February 17, 1920

Submitted February 4, 1920.

Syllabus by the Court.

Two or more tort-feasors acting independently, without concert collusion, or pursuit of a common design, in the perpetration of like wrongful acts at the same time, working like injury to the same subject, are not jointly liable for injury subsequently resulting to any person from combination of the consequences of such wrongful acts by the operation of natural causes.

In the case of wholly independent action of tort-feasors, there is no joint liability, nor liability of one of them for entire damages, except in those instances in which the injury results immediately or directly from the coincident and contemporaneous wrongful acts.

Two or more persons who, acting separately and independently, have wrongfully cast in a stream coal, cinder, and other materials and polluted and defiled it, in consequence of which the property of a riparian owner has been injured and damaged are not jointly liable for the damages so wrought, nor is any one of them liable for such damages in their entirety.

In so far as the decision in Day v. Louisville Coal & Coke Co., 60 W.Va. 27, 53 S.E. 776, 10 L.R.A. (N. S.) 167 conflicts with the propositions above stated, it is disapproved and overruled.

Failure of a declaration against several tort-feasors, joined in one action, to show any ground of joint liability, is good cause of demurrer thereto for misjoinder of parties.

If on such a declaration there has been a verdict and judgment for the plaintiff, the appellate court, on writ of error, will reverse the judgment, set aside the verdict and remand the case, with leave to the plaintiff to amend his declaration so as to show a joint right of action, if he desires to do so, or to prosecute his action against one of the defendants and dismiss it as to the others.

If, in an action against two or more tort-feasors, the proof shows they acted separately and independently, in the perpetration of the wrongful acts alleged and proved against them, and the injury the plaintiff has suffered from such acts is a merely consequential result of the coincident and contemporaneous torts, and not a direct and immediate one, a motion to set aside a verdict for the plaintiff therein, as being contrary to the law and the evidence, should be sustained.

Error to Circuit Court, Mercer County.

Action by L. B. Farley against the Crystal Coal & Coke Company and five others. Demurrer to declaration overruled, verdict and judgment for plaintiff, and defendants bring error. Reversed, verdict set aside, demurrer sustained, and case remanded.

Reynolds & Reynolds and John R. Pendleton, all of Princeton, for plaintiffs in error.

John M. McGrath and Hugh G. Woods, both of Princeton, for defendant in error.

POFFENBARGER J.

The judgment complained of, amounting to $1,650, stands upon a declaration in an action against six different coal mining corporations, whose mines and works are located at different places on tributaries of the Bluestone river, charging them with having polluted and defiled said river, by casting into it directly and indirectly cinder, coal, slag, and other materials from their mines and coke ovens and fetid and putrid matter from their tenant houses and privies, and so altered its condition by means of such deposits as to cause more frequent and disastrous overflows of the bottom lands along its course, the filling up of its bed, narrowing of its channel and deposits on its shores, and with having injured and damaged the plaintiff's farm by such means. A demurrer to the declaration was overruled and is relied upon in the assignments of error. If it was well taken and should result in a reversal, it will be unnecessary to consider all of the other numerous assignments of error.

The coal works of three of the defendants are located on Crane creek, those of one of them on Flipping creek, and those of the other two on Widemouth creek. All of these streams flow into the Bluestone river at distances above the location of the plaintiff's farm not stated in the declaration. The deposits of the river, according to the allegations in the declaration, have filled up practically all of the holes in the stream, narrowed its channel, cast great quantities of cinder, coal, and sand over portions of its bottom lands, made heavy deposits along its shores, destroyed the plaintiff's fords of the river, by means of which he went from one part of his farm to another, caused mucky deposits along the shores of the stream, preventing cattle from going to it with safety for water, and on the edges of the bottom lands of plaintiff's farm, increased the frequency and volume of overflows of the bottom lands, turned the waters black and so polluted them that they are unfit for use, and otherwise injured and damaged the plaintiff's farm. There is no allegation that the defendants acted in concert, collusion, or pursuit of a common design in the performance of the acts which are alleged to have injured and defiled the stream and damaged the plaintiff's land. It simply alleges that they did the specified wrongful acts, and that the injury and damage to the plaintiff's land resulted therefrom.

For legal justification of joinder of these defendants in one action and right to recover upon a declaration so framed, the plaintiff relies upon the decision of this court rendered in Day v. Louisville Coal & Coke Co., reported in 60 W.Va. at page 27, 53 S.E. 776, 10 L.R.A. (N. S.) 167. That action was prosecuted against a single coal mining corporation, one of the defendants in this action, by the owner of another farm situated on the same stream, for injury and damage thereto by reason of acts of the same kind as those alleged in this declaration. But joint and several liability of all persons and corporations guilty of the wrongful acts charged in the declaration was asserted and adjudicated in that action in the determination of the extent of the liability of the defendant therein. It was held to be liable for the entire damages to his farm, wrought by the consequences of the acts of the defendant and all other persons and corporations whose wrongful acts of like kind had combined with those of the defendant in the infliction thereof. The substance of the court's conclusion respecting that phase of the case is embodied in point 2 of the syllabus, reading as follows:

"When the negligent acts of two or more persons, though acting independently of each other, concurrently result in injury to the property of another, they are liable either jointly or separately."

In this case the soundness of that decision is questioned by the demurrer to the declaration, and also by the motion to set aside the verdict. The lack of concert, collusion, common design, or any other element of connection among the defendants is clearly revealed by the evidence. They are wholly independent concerns operating at different points on the tributaries of the river.

A careful examination of the opinion delivered in the case above referred to, Day v. Louisville Coal & Coke Co., readily discloses failure on the part of the court to observe and apply a well-defined and firmly grounded exception to the general rule of liability of joint tort-feasors given in the opinion, or, stated more accurately, a limitation of the rule of joint liability and liability for entire damages. This exception or limitation is that there is no joint liability nor liability for entire damages when the tort-feasors act independently, without concert, collusion, or common design, and the injury to the plaintiff is consequential only, or remotely resulting, as contradistinguished from direct and immediate. The rule as quoted in the opinion from Shearman & Redfield on Negligence puts in this element of directness, saying:

"Persons who co-operate in an act directly causing injury are jointly liable for its consequences."

Nor does Cooley on Torts in the quotation from it omit this element. It says:

"If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause, and the parties held responsible, either jointly or severally, for the injury."

The same quotation from Shearman & Redfield is found in Boyd v. Watt, 27 Ohio St. 259, and the opinion filed in that case puts in the element of directness. Another quotation in Day v. Louisville Co., taken from Grand Trunk R. Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266, says:

"Where separate and independent acts of negligence of two parties are the direct causes of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury."

The decisions cited and relied upon in the opinion in Day v. Louisville Coal & Coke Co. all involved cases of direct injury by the wrongful acts complained of. In Boyd v. Watt, the action was founded upon a statute giving right of action to any person who had caused intoxication of another person, to the injury and damage of the plaintiff. The defendant undertook to limit his liability on the ground of contribution to the result by other persons, without his knowledge or consent. In its disposition of the case the court said:

"If defendant was using the means calculated to produce the injury, the law presumes he intended to produce it. If others, with or without concert, were concurrently co-operating with him, using like means, they were acting with the same common design, and if the injury resulted, each is liable, though each was acting without the

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