Key v. Works

• Decision Date: 27 July 1916
• Docket Number: (Nos. 7220, 7250.)
• Parties: KEY. v. ARMOUR FERTILIZER WORKS et al. ARMOUR FERTILIZER WORKS et al. v. KEY.
• Court: Georgia Court of Appeals

89 S.E. 593

(18 Ga.App. 472)

KEY.

v.ARMOUR FERTILIZER WORKS et al.

ARMOUR FERTILIZER WORKS et al.

v.KEY.

(Nos. 7220, 7250.)

Court of Appeals of Georgia.

July 27, 1916.

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by J. W. Key against the Armour Fertilizer Works and another. Judgment for defendants, and plaintiff brings error, and defendants file a cross-bill of exceptions. Affirmed on main bill of exceptions, and cross-bill dismissed.

Geo. F. Gober and W. I. Heyward, both of Atlanta, for plaintiff in error.

Anderson & Rountree and R. W. Crenshaw, all of Atlanta, for defendants in error.

BROYLES, J. [1, 2] This was a joint suit for damages against two separate and distinct corporations, with separate and distinct plants, engaged in the manufacture of fertilizers. The plaintiff's petition alleged that the plants of both defendants discharged therefrom noxious and poisonous gases into the atmosphere, and that these gases invaded his premises and poisoned and befouled the air therein to such an extent as to cause sickness and death in his family, and to otherwise injure and damage him. The defendants interposed a demurrer to the petition, and the court sustained grounds 2, 3, and 4 thereof. These grounds were as follows:

(2) "Because neither said petition nor any count thereof states facts sufficient to constitute a joint cause of action against these defendants."

(3) "Because in said petition and in each count thereof there is an improper joinder of causes of action, to wit, a separate and distinct cause of action in favor of the plaintiff against the Armour Fertilizer [Works], and a separate and distinct cause of action in favor of the plaintiff against Morris Fertilizer Company."

(4) "Because in said petition and in each count thereof there is an improper joinder of parties, for that the Armour Fertilizer Works, if liable at all, is liable only for its own acts and for the damages resulting therefrom, and the Morris Fertilizer Company, if liable at all, is liable only for its own acts and for the damages resulting from such acts, and neither defendant is liable for the acts of its codefendant or the damages resulting from the acts of its codefendant."

In its order sustaining these grounds of demurrer, the court provided that the plaintiff should have 10 days within which to elect which one of the defendants he would proceed against, and that in the event of a failure to make such election the case should stand dismissed. The 10 days having expired without the plaintiff complying with the order, the case stood automatically dismissed, and the plaintiff excepted.

In our opinion the ruling of the court was correct. The petition showed that the two defendants were separate and distinct corporations, and that they operated separate and distinct plants, and no concert of action, or common design, or community of interest was shown. Conceding that an actionable nuisance appeared, and that...