Johnson v. City of Fairmont
| Citation | 247 N.W. 572,188 Minn. 451 |
| Decision Date | 17 March 1933 |
| Docket Number | No. 29364.,29364. |
| Parties | JOHNSON et ux. v. CITY OF FAIRMONT et al. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, Martin County; Julius E. Haycraft, Judge.
Action by Edward Johnson and wife against the City of Fairmont and others. From orders granting defendants' separate motions for judgment notwithstanding verdict for plaintiffs, plaintiffs appeal.
Affirmed.
Leo J. Seifert, of Fairmont, for appellants.
Frank E. Dougherty, John W. Flynn, and McCune & McCune, all of Fairmont, for respondents.
Defendants moved separately for judgment notwithstanding a verdict rendered against them jointly in favor of plaintiffs for $960, or in the alternative for a new trial, and plaintiffs appealed from orders granting defendants' respective motions for judgment.
Since 1915 plaintiffs, husband and wife, have owned and lived upon a quarter section farm, located northeasterly a mile or two from the city of Fairmont. They there operated a dairy farm, and, of course, made their home thereon. Center creek which is perhaps the only available drainage for the city, runs through plaintiffs' farm flowing from the west to the east. To care for the discharge from its sanitary sewage system, the city maintains an Imhoff or septic tank with a capacity of 400,000 gallons per 24 hours, the effluent from which is discharged into Center creek and flows upon plaintiffs' farm, which is about one mile from the tank.
Defendant Fairmont Canning Company owns and operates two canning factories in the city of Fairmont, which dump waste matters into a tile emptying into a judicial ditch, which in turn outlets into a slough about one-half mile from plaintiffs' farm. The slough overflows and discharges into Center creek on but near the west line of plaintiffs' farm.
1. There are different offensive odors coming from these two sources. They at times mingle and fuse on plaintiffs' farm, and the evidence is sufficient to sustain the finding of the jury that the consequences from the acts of either defendant would constitute a nuisance. Undoubtedly the sewer odor from the city tank was more constant and offensive than the sour odor from the canning factory. For present purposes it is sufficient to say that these odors constituted a nuisance upon plaintiffs' farm. See City of Harrisonville v. W. S. Dickey Clay Manufacturing Co., 288 U. S. ___, 53 S. Ct. 602, 77 L. Ed. ___.
2. The serious question before us is whether tort-feasors acting independently, each causing damage, may be held jointly liable in an action for damages.
The evidence is sufficient to establish a cause of action based on the nuisance against either defendant, but it, of course, is not the same evidence. Each acted independently of the other, but each knew that the other was discharging matter in the creek that was producing offensive odors on plaintiffs' premises and knew that the plaintiffs claimed that a nuisance was thereby created thereon. No attempt was made at the trial to apportion or separate the damages. The plaintiffs attempt to hold defendants as joint tort-feasors. May this be done? We have a pure question of law for our consideration.
The weight of authority or general rule is that acts of independent tort-feasors, each of which cause some damage, may not be combined to create a joint liability at law for damages. Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. St. Rep. 656; Farley v. Crystal Coal & Coke Co., 85 W. Va. 595, 102 S. E. 265, 9 A. L. R. 933, annotation 942; 35 A. L. R. 410, note. There are authorities supporting the contrary or minority rule, annotation 9 A. L. R. 944.
In the instant case there is no evidence to prove any concert of action between defendants to the injury of plaintif...
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