Guth v. Texas Co., 9021.
| Decision Date | 18 June 1946 |
| Docket Number | No. 9021.,9021. |
| Citation | 155 F.2d 563 |
| Parties | GUTH v. TEXAS CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Albert H. Fry, of Chicago, Ill., for appellant.
Henry I. Green and Enos L. Phillips, both of Urbana, Ill., Walter E. Will, of Mattoon, Ill., and Harold A. Smith, of Chicago, Ill., for appellee.
Before EVANS and MINTON, Circuit Judges, and LINDLEY, District Judge.
This is the second appeal to this Court on the pleadings. On the first appeal, the plaintiff appealed from an order dismissing his amended complaint for failure to allege facts entitling him to any relief. The plaintiff was the owner of a 1/32 interest in the oil, gas, gasoline, casinghead gas and petroleum distillates in, on and under certain described lands in Illinois. The defendant was assignee of a lease upon these lands which entitled it to explore and drill for oil and gas.
As the question of whether the plaintiff could sue alone without joining his co-tenants was not presented to us on the first appeal, we held that the complaint stated facts sufficient to constitute a cause for relief for negligence against the defendant. It was also alleged that large quantities of oil and gas had been wasted. We held that the plaintiff, on this point of waste, stated no cause for relief against the defendant as it was not alleged that the defendant had burned and wasted the oil and gas. 7 Cir., 145 F.2d 820. As the case went back to the District Court, we had held that the plaintiff had stated a cause for relief on the ground of negligence. The case had been briefed and argued before us as a tort action for negligence and waste. The amended complaint was capable of that construction.
After the case was returned to the District Court, the plaintiff on January 16, 1945, amended the allegations of his original amended complaint so as to allege that the oil and gas that were burned and wasted were burned and wasted by defendant. This amended complaint will be referred to as the second amended complaint.
On February 2, 1945, the defendant answered and in paragraph 13 of its answer, it alleged that the cause of action sued upon by the plaintiff was personal, and that he could not maintain his several action, and that he must join his co-tenants. The plaintiff moved to strike this answer on the ground that it did not present a legal defense. On January 7, 1946, the District Court overruled the motion; the plaintiff elected to stand on his pleadings and insisted upon his right to sue as sole plaintiff, and the Court dismissed his action. The plaintiff appealed from this judgment.
As the record came to us on this appeal, it contained, among other things, the amended complaint that was before us on the first appeal, the amendment thereto of January 16, 1945, and the defendant's answer of February 2, 1945, and the District Court's order of January 7, 1946, dismissing the complaint. On the argument, counsel for the defendant produced an authenticated copy of the order of the District Court of June 21, 1945, which, with leave of court, permitted the plaintiff to amend the second amended complaint by increasing the amount of damages claimed and then substituting for paragraph 5 of the second amended complaint the following amendment:
"This plaintiff charges further, that of the gas, gasoline and petroleum distillates so produced and not accounted for or paid for, a large volume was wasted, burned and destroyed; that the share or proportion of the gas, gasoline and petroleum distillates so wasted and destroyed, belonging to and owned by the plaintiff aggregated in excess of 3,341,000,000 cubic feet; that the value thereof was in excess of one hundred ten thousand ($110,000.00) dollars."
This amendment restored paragraph 5 to the exact language of the original amended complaint that was before us on the first appeal except the amount of damages claimed. By agreement of counsel for the parties made in open court on the oral argument, these amendments to the second amended complaint were made a part of the record. As the record now stands, the amendment of June 21, 1945, makes the third amended complaint.
The District Court held that the action for damages alleged could not be maintained by plaintiff alone, and dismissed the complaint although at the time the complaint was dismissed on January 7, 1946, the amendment of June 21, 1945, was a part of it. The third amended complaint had a dual aspect just as it had when it was first before us. As heretofore pointed out, the question of joinder of parties was not before us on the first appeal. Because the case was briefed and argued before us as one of tort for negligence and waste, we had sustained the complaint as stating a cause for relief for negligence only. On this appeal, plaintiff argued that his position on the third amended complaint was an action for gas, gasoline and petroleum distillates produced and not accounted for or paid for. He frankly admitted he had changed his entire theory. True, the plaintiff still had in the amendment the same allegations as to waste that were in the amended complaint when it was first before us. But treating the allegations as to the burning and destroying of gas, gasoline and petroleum distillates as surplusage, the plaintiff had stated facts sufficient to entitle him to relief on account for gas, gasoline, and petroleum distillates produced and unpaid for or unaccounted for.
The plaintiff's complaint must be held sufficient if upon any view of the allegations he had stated facts sufficient to entitle him to relief. Kansas City, St. Louis & C. R. Company v. Alton Railroad Company, 7 Cir., 124 F.2d 780, 783; Keiser v. Walsh, 73 App.D.C. 167, 118 F.2d 13, 14; Gay v. E. H. Moore, Inc., D.C., 26 F.Supp. 749; Catanzaritti v. Bianco, 25 F.Supp. 457. Since the complaint as amended the third time stated one cause for relief for negligence and one on account, even under the liberal practice that prevails under the Rules of Civil Procedure, these two causes should have been stated in separate counts and numbered. Federal Rules of Civil Procedure rule 10(b), 28 U.S.C.A. following section 723c.
We agree with the District Court that the cause of...
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