Landers v. East Tex. Salt Water Disposal Co.

• Decision Date: 28 June 1951
• Docket Number: No. 6527,6527
• Citation: 242 S.W.2d 236
• Parties: LANDERS v. EAST TEXAS SALT WATER DISPOSAL CO., Inc. et al.
• Court: Texas Court of Appeals

Page 236

242 S.W.2d 236

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

No. 6527.

Court of Civil Appeals of Texas, Texarkana.

June 28, 1951.

Rehearing Denied Sept. 6, 1951.

Mat Davis, Gilmer, for appellant.

Ramey, Calhoun, Marsh, Brelsford & Sheehy, Fred Hull, Tyler, Carrington, Gowan, Johnson & Walker, W. C. Gowan, Dallas, for appellee.

LINCOLN, Justice.

The opinion of this court rendered on the 25th day of April, 1951, is hereby withdrawn and the following opinion is rendered in lieu thereof:

This appeal is from an order of the District Court of Upshur County, sustaining pleas in abatement filed by appellees directed at appellant's petition and dismissing his suit. The petition alleged that a lake on appellant's land is supplied with water from slopes and drains west of his land; that on or about April 1, 1949 the East Texas Salt Water Disposal Co., Inc. (hereafter referred to as the Salt Water Company) negligently permitted its line to break, thereby permitting salt water pumped through said line to escape and run by natural drainage into appellant's lake. The salt water line, as we understand the petition and the briefs, is on the south side of the draw through which water flows into appellant's lake. The claim against the Sun Oil Company is that on the north side of said draw there is an oil well and a pipe line through which said company pumps oil and salt water, and that on or about the same date it negligently permitted its line to become broken and to permit its oil and salt water to escape and run into appellant's lake. As a result of pollution of the lake by salt water and by oil, appellant alleges pecuniary damages through loss of fish, expense of drainage, cleaning out the lake, and other claims not necessary to mention. The appellant sought an injunction against both appellees to prevent further pollution of his lake, as well as damages against the appellees jointly. The pleas in abatement filed by each of the appellees are substantially identical. The grounds stated in the pleas are that there is a misjoinder of parties defendant and of causes of action as shown by the appellant's petition, because the petition does not allege that the defendants were acting jointly or that they were jointly negligent, but on the contrary it appears from such petition that each defendant is alleged to have acted separately in doing the acts complained of. Each defendant also filed separate answers subject to the pleas in abatement, with numerous exceptions to the petition, some of which are upon the same grounds as stated in the pleas in abatement, and general and special denials.

The judgment appealed from recites that on December 9th, 'came on to be heard the respective pleas in abatement of the defendants * * * to plaintiff's cause of action herein'; that the court 'having heard the said pleas in abatement and considered the pleadings on file as the evidence in support of said pleas,' took the same under advisement and on December 17 thereafter rendered his decision. By the decision and judgment, the pleas in abatement were overruled insofar as concerned the suit of appellant for injunctive relief, and the main suit was permitted to remain on the docket for that purpose. As for the appellant's suit against the corporate defendants, appellees, for damages, the court held that there was a misjoinder of parties and causes of action, and the judgment sustaining the pleas in abatement directed a severance. The judgment ordered appellant's suit for damages against the Salt Water Company docketed as one case and his suit for damages against Sun Oil Company docketed as another case, and that appellant replead his cases. It is further recited that appellant refused to replead and his entire suit was dismissed, to all of which the appellant excepted and gave notice of appeal.

Appellees urge that the action of the court appealed from was dismissing appellant's suit, not in sustaining the pleas in abatement. But dismissal of the suit constituted a final judgment and brings in review the action of the court in sustaining the pleas in abatement. Appellant predicates error of the trial court in sustaining the pleas in abatement on the ground that in an action for damages due to the negligence of two different persons, but together the efficient cause of such damage, and where the actions of both parties contributed to the resulting damage, they may be held liable jointly, and the negligence of one furnishes no excuse for the negligence of the other. He relies upon the decision of the Court of Civil Appeals in Rapid Transit Ry. Co. v. Edwards, 55 Tex.Civ.App. 543, 118 S.W. 838, 840, in which writ of error was denied by the Supreme Court. In that case Judge Talbot quoted with approval from Missouri, K. & T. Railway Co. v. Williams, Tex.Civ.App., 117 S.W. 1043, as follows: 'If an accident occurs from two causes, both due to negligence of different persons, but together the efficient cause, then all the persons whose acts contribute to the accident are liable for an injury resulting, and the negligence of one furnishes no excuse for the negligence of the other.' Following which, the court further said: 'Therefore, notwithstanding the Santa Fe Railway Company was guilty of negligence in placing the coal car so close to the railway track of appellant the jury were justified in concluding that appellant failed to use ordinary care to discover and have said car removed, and that such negligence, concurring with the negligence of the Santa Fe Railway Company proximately contributed to cause appellee's injuries.'

It is apparent that the court in the Edwards case construed the facts as constituting concurrent acts of negligence producing a single result, the death of the street railway conductor. This is further emphasized from a consideration of the same court's decision in Missouri, K. & T. Railway Co. v. Williams, supra, as authority for the holding in the Edwards case. In the Williams case it was clearly held that the facts constituted concurrent negligence producing the death of the engineer.

On the other hand appellees rely upon the decisions, among others, of Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713; Warren v. Premier Oil Refining Co., Tex.Civ.App. 173 S.W.2d 287 and algorde Oil Co. v. Hokanson, Tex.Civ.App., 179 S.W. 350. In the last two cases error was refused for want of merit. The Robicheaux case was quite similar in its facts to the present case. The suit was against the Sun Oil Company and numerous other alleged oil producers for damages for permitting salt water to be drained by the defendants onto lands cultivated by the plaintiffs. In that case Judge Cr...