Johnson v. Chapman

• Citation: 28 S.E. 744,43 W.Va. 639
• Parties: JOHNSON v. CHAPMAN et al.
• Decision Date: 10 November 1897
• Court: Supreme Court of West Virginia

28 S.E. 744

43 W.Va. 639

JOHNSON v. CHAPMAN et al.

Supreme Court of Appeals of West Virginia.

November 10, 1897

Submitted June 4, 1897

Syllabus by the Court.

1. Where two contiguous buildings fall upon and crush a third by reason of the co-existent and concurring negligence of the respective owners thereof to keep their separate walls in repair, the owner of the injured building may maintain a joint or separate suit against the owners of the defective buildings.

2. Under section 37, c. 58, of the Code, it is the duty of the committee of an insane person to sue for injuries done to the real or personal estate of his ward.

3. A life tenant in possession is entitled to sue for damages done the property, by which the rental value thereof is diminished or destroyed. The measure of damages, as in other cases, is the amount necessary to make good the loss, which must be determined by the jury from the facts and circumstances shown in evidence.

Appeal from circuit court, Ohio county; Joseph R. Paull, Judge.

Action by William D. Johnson, committee for Elizabeth Turner against William H. Chapman and Tempest T. Hutchinson. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Geo. E Boyd & Son, for appellant.

Wm. P Hubbard and Henry M. Russell, for appellees.

DENT J.

The circuit court of Ohio county entered a judgment on the 30th day of May, 1896, sustaining a demurrer to the declaration, and dismissing a suit instituted by William D. Johnson, committee for Elizabeth Turner, an insane person, against William H. Chapman and Tempest T. Hutchinson, to recover damages for injuries sustained by the estate of such insane person by reason of the negligence of the defendants. A writ of error was awarded by this court. The grounds of demurrer relied on are (1) the misjoinder of causes of action; (2) the committee suing without legal authority; (3) the injury sustained by the lessee in possession, and not the life tenant; (4) the measure of damages improperly alleged to be the amount required to restore the property to its former condition.

The circuit court confined itself to, and sustained, the demurrer, by reason of the first ground presented; no doubt deeming the others untenable. On this point there is in reality no difference in the law governing the same, as urged by the counsel for the parties, or as expounded in the opinion of the court, but the trouble seems to be in the application of the law to the allegations of the declaration. The opinion of the judge, which is made a part of the defendants' brief, is as follows: "The defendants demur to the declaration filed in this case, and to each count thereof, together with so much of the first count as relates to the southern or outside wall therein mentioned, on the ground of misjoinder; it being shown that neither count shows that the injury complained of was the result of a joint wrong. In 1 Jagg. Torts, 212, 213, it is said: 'There is a marked distinction between a tort and liability arising from a tort. The liability, as between the plaintiff and the defendant, may always be treated as several, but the wrong itself may be jointly done or severally done by the defendants. If it be jointly done (that is, in concert), the defendants are joint tort feasors. If it be severally done (that is, independently, though for a similar purpose and at the same time, without any concert of action), they are several tort feasors. None the less, ordinarily, both parties guilty of concurrent negligence may be sued jointly, though they had no common purpose, and though there was no concert in action.' In Cooley, Torts, 89, it is said: 'A fourth proposition may be stated thus: That, 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.' These principles are sustained, not only by the numerous cases cited, respectively, in support thereof by the writers above quoted from, but also by the following, among others, not so cited: Sloggy v. Dilworth, 38 Minn. 179, 36 N.W. 451; Langhorne v. Railway Co. (Va.) 22 S.E. 159; Blaisdell v. Stephens, 14 Nev. 17; Miles v. Du Bey (Mont.) 39 P. 313; Sellick v. Hall, 47 Conn. 260; Bard v. Yohn, 26 Pa. St. 482; Stanley v. Railroad Co. (Mo. Sup.) 21 S.W. 832; Railway Co. v. Croskell (Tex. Civ. App.) 25 S.W. 486; Waller v. Railway Co., 59 Mo.App. 410; Koelsch v. Philadelphia Co., 152 Pa. St. 356, 25 A. 522. In Stanley v. Railroad Co., supra, on page 836, it is said: 'There is no doubt about the proposition that joint tort feasors are each liable, but, to hold them jointly liable, they should have either acted in concert, or the act of one would naturally result in causing the act of the others.' In Railway Co. v. Croskell, supra (page 486), the principle is announced that, to hold several jointly liable for an injury, it must have resulted proximately from their joint and concurrent negligence. In Waller v. Railway Co., supra (page 426), it is said: 'The case is grounded on two causes contributing to the injury; and it has been well said that when several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of these causes. Ring v. City of Cohoes, 77 N.Y. 83. There was here, according to the evidence, two efficient, proximate causes, both contributing to the injury inflicted. The party, therefore, who by his or its negligent act brought about one or both of these, is liable for the injurious consequences.' In Koelsch v. Philadelphia Co., 152 Pa. St. 364, 25 A. 524, it is said: 'The concurrence of the presence of the gas and the lighting of the match, the negligence of the defendant with that of Walters, was necessary to, and did, cause the explosion.' In a note to Village of Carterville v. Cook (Ill. Sup.) 16 Am. St. Rep. 251 (s. c. 22 N.E. 14), it is said: 'Where one act of negligence unites with another and like act, or with any other cause, in inflicting injury upon the person or property of another, whose negligence has not also contributed to his injury, and there exists no means of determining the extent to which the injury resulted from either negligent act, it is obvious that each person guilty of negligence must be either held entirely exonerated, or as answerable for the whole damages inflicted in part by his negligence. In all instances in which his negligence can be regarded as the proximate cause, or as one of the proximate causes, of an injury, he is answerable for the whole thereof, either separately or jointly, and severally with any other person whose negligence or other wrongful act may also have been one of the proximate causes of such injury.' The foregoing quotations, which were made for the purpose of illustration, show that two persons cannot be guilty of 'concurrent negligence,' so as to authorize a joint action against them for the injury resulting therefrom, unless the negligence of each was one of the efficient, proximate causes of the injury. Now, the first count of the declaration under consideration alleges, in substance, that on January 10, 1895, Elizabeth Turner was tenant for life of two warehouses situated on the east side of Main street, in this city; that the defendants were possessed of certain other warehouses, adjacent to, and north of, those above mentioned; that the southern and outside wall of the warehouses possessed by the defendant Hutchinson was weak, unsafe,...