Landers v. East Tex. Salt Water Disposal Co.

• Decision Date: 02 April 1952
• Docket Number: No. A-3375,A-3375
• Citation: 248 S.W.2d 731,151 Tex. 251
• Parties: LANDERS v. EAST TEXAS SALT WATER DISPOSAL CO. et al.
• Court: Texas Supreme Court

Page 731

248 S.W.2d 731

151 Tex. 251

LANDERS v. EAST TEXAS SALT WATER DISPOSAL CO. et al.

No. A-3375 Supreme Court of Texas.

April 2, 1952.

Rehearing Denied May 28, 1952.

Mat Davis, Gilmer, for petitioner.

Carrington, Gowan, Johnson & Walker, Dallas, Ramey, Calhoun, Marsh & Brelsford, Tyler, and Hardwicke & Hardwicke, Fort Worth, for respondents.

Roy W. McDonald, New York City, as amicus curiae.

CALVERT, Justice.

Suit by C. H. Landers, plaintiff, against East Texas Salt Water Disposal Company and Sun Oil Company, defendants, seeking a joint and several judgment of damages and injunctive relief was dismissed as to the damages feature by the trial court, when, after the defendants' pleas in abatement asserting a misjoinder of parties and of causes of action had been sustained, the plaintiff declined to replead so as to assert several liability only against each of the defendants in separate suits. The Court of Civil Appeals affirmed. 242 S.W.2d 236.

In his petition plaintiff alleged that he was the owner of a small lake which he had drained, cleaned and stocked with fish at considerable expense; that defendant East Texas Salt Water Disposal Company was the owner of a pipe line which traversed land adjoining plaintiff's land on the west and into which the defendant pumped approximately 1500 barrels of salt water daily; that on or about April 1, 1949, such pipe line broke and the defendant Disposal Company negligently permitted some 10,000 to 15,000 barrels of salt water to escape from the line and to flow over plaintiff's land and into his lake, killing his fish and otherwise injuring and damaging him. Plaintiff further alleged that the defendant Sun Oil Company was the owner of an oil well, located a short distance from plaintiff's property line, from which the defendant pumped small quantities of oil and large quantities of salt water each day, the oil and salt water being carried off through a pipe line which for some distance ran parallel to a spring branch; that the branch crossed plaintiff's property and emptied into his lake; that on or about April 1, 1949, the pipe line broke and the defendant Sun Oil Company negligently permitted large quantities of oil and salt water to escape and run into the branch and thence into plaintiff's lake, killing his fish and otherwise injuring and damaging him.

When the trial judge sustained the pleas in abatement he did not dismiss the suit as he would have done before the adoption of Texas Rules of Civil Procedure, but rather ordered a severance, leaving on the docket under the original cause number, 10472, that part of the suit seeking injunctive relief against both defendants, ordering that plaintiff's suit for damages against Sun Oil Company be docketed as Cause Number 10472A and that his suit for damages against East Texas Salt Water Disposal Company be docketed as Number 10472B. Plaintiff excepted to the action of the court and declined to replead his case. His cause of action for damages was thereupon dismissed.

Much of defendants' brief in this court is devoted to the general proposition that in refusing to replead the plaintiff lost his right to complain of the order of dismissal. It is the theory of respondents that orderly procedure required the plaintiff to replead when ordered to do so, proceed to trial in one of the severed cases of damages and appeal only when he had lost the case, assigning as error on such appeal the action of the court in ordering the severance and in requiring the repleader.

A plea of misjoinder, though sustained, can no longer in itself result in a dismissal. Rule 41, T.R.C.P., specifically so provides. Assuming that there was a misjoinder of parties and causes of action, the order entered by the trial court was in all respects in keeping with the provisions of Rule 41, and was perfectly proper. On the other hand, if there was no such misjoinder and it was error to order the severance and repleader, the plaintiff was within his rights in declining to replead and in declining to proceed through a futile and fruitless trial in order to test the correctness of the ruling. The plaintiff was asserting a joint and several cause of action for damages against the two defendants and when the trial court ordered a severance of the cause so that plaintiff's suit asserting joint and several liability of the two defendants could no longer be tried, the plaintiff's case was terminated just as effectively as if it had been dismissed. The plaintiff was not required under the circumstances of this case to replead and try a case wholly different from that asserted by him in order to obtain appellate review of his right to pursue to trial the case made by his pleadings.

Did the plaintiff in his pleading allege facts which, if established by evidence, made the defendants jointly and severally liable for plaintiff's damages? From the face of the petition it appears that there was no concert of action nor unity of design between the defendants in the commission of their alleged tortious acts, an absence said by the court in the case of Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713, 715, to be determinative of the nonexistence of joint liability. In that case the rule was thus stated:

'The rule is well established in this state, and supported by almost universal authority, that an action at law for damages for torts cannot be maintained against several defendants jointly, when each acted independently of the others and there was no concert or unity of design between them. In such a case the tort of each defendant is several when committed, and it does not become joint because afterwards its consequences, united with the consequences of several other torts committed by other persons in producing damages. Under such circumstances, each tort-feasor is liable only for the part of the injury or damages caused by his own wrong; that is, where a person contributes to an injury along with others, he must respond in damages, but if he acts independently, and not in concert of action which other persons in causing such injury, he is liable only for the damages which directly and proximately result from his own act, and the fact that it may be difficult to define the damages caused by the wrongful act of each person who independently contributed to the final result does not affect the rule. Sun Co. v. Wyatt, 48 Tex.Civ.App., 349, 107 S.W. 934; 38 Cyc. 484; 26 R.C.L. 766.'

It may be noted that the opinion of the Commission of Appeals in the Robicheaux case was not adopted by the Supreme Court. Nevertheless, it has been generally recognized as having correctly stated the law of this state (see Radoff v. Guardian Trust Co., Tex.Civ.App., 57 S.W.2d 607, 609 (writ refused)), and it was specifically cited and followed by the Court of Civil Appeals in deciding this case.

Undoubtedly the general rule adopted and followed in the Robicheaux case is adequately supported by respectable authority, though it may be doubted that it is as universally approved as is there indicated. See cases collated in the following: 9 A.L.R. 939; 35 A.L.R. 409; 91 A.L.R. 759; 65 C.J.S., Negligence, § 102, pp. 639-645, Negligence, sec. 102; 62 C.J. pp. 1130-1135; Torts, secs. 44 & 45; 38 Amer.Jur. pp. 946-948, Negligence, sec. 257; 52 Amer.Jur., pp. 448-454, Torts, secs. 110-112; Cooley on Torts, Fourth Edition, Vol. 1, pp. 276-287, sec. 86. A casual reading of the cited texts will demonstrate that different writers have different ways of stating the rule, each with somewhat different implications, and that they differ also in what constitutes majority sentiment. But with the exception of Oklahoma and Kansas (see Northup v. Eakes, 72 Okl. 66, 178 P. 266; Tidal Oil Co. v. Pease, 153 Okl. 137, 5 P.2d 389; Kanola Corp. v. Palmer, 167 Okl. 430, 30 P.2d 189; Prairie Oil & Gas Co. v. Laskey, 173 Okl. 48, 46 P.2d 484; Arnold v. C. Hoffman & Son Milling Co., 86 Kan. 12, 119 P. 373; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 P. 899, 50 L.R.A.,N.S., 388; Mosby v. Manhatten Oil Co., 8 Cir., 52 F.2d 364, 77 A.L.R. 1099, certiorari denied, 284 U.S. 677, 52 S.Ct. 131, 76 L.Ed. 572), the courts of the country seem to be virtually unanimous in refusing to impose joint and several liability on multiple wrongdoers whose independent tortious acts interfere with a landowner's interest in the use and enjoyment of land by interfering with his air or water. Restatement of the Law of Torts, Vol. 4, p. 449, sec. 881; Cooley on Torts, 4th Edition, Vol. 1, pp. 283-287; 9 A.L.R. 947-952; 35 A.L.R. 412; 92 A.L.R. 763-765.

Much has been written on the need for re-examination of the rule approved in the Robicheaux case. See Wigmore in 17 Illinois Law Review 458; 27 Columbia Law Review 754; Gendel in 19 California Law Review 630; Prosser in 25 California Law Review 413; Jackson in 17 Texas Law Review 399; Robinson in 27 Texas Law Review 732. Thus far, however, but little has been achieved toward inducing the courts to re-examine the rule. Wigmore has suggested that the rule of joint and several liability in the field of torts had its inception in the need of the law, bent on justice, to relieve a plaintiff of the intolerable burden of proving what share each of two or more wrongdoers contributed to the plaintiff's injuries, and that the burden is just as intolerable and the need for relief therefrom is just as great when the independent tortious acts of multiple defendants contribute to a plaintiff's indivisible injuries as when the acts are done in concert and of common design. 17 Illinois Law Review 459. The rule of the Robicheaux case, strictly followed, has made it impossible for a plaintiff, though gravely injured, to secure relief in the nature of damages through a joint and several judgment by joining in one suit as defendants all wrongdoers whose independent tortious acts have joined in producing an injury to the plaintiff, which, although theoretically divisible, as a practical...