McGannon v. Chicago & North Western Railway Co.

• Decision Date: 27 June 1924
• Docket Number: 24,098
• Citation: 199 N.W. 894,160 Minn. 143
• Parties: PATRICK McGANNON v. CHICAGO & NORTH WESTERN RAILWAY COMPANY AND ANOTHER
• Court: Minnesota Supreme Court

199 N.W. 894

160 Minn. 143

PATRICK McGANNON v. CHICAGO & NORTH WESTERN RAILWAY COMPANY AND ANOTHER

No. 24,098

Supreme Court of Minnesota

June 27, 1924

Action in the district court for Waseca county to recover $2,800. Separate demurrers to the complaint were sustained by Childress, J. From an order, Senn, J., sustaining defendants' demurrers to the complaint after rehearing plaintiff appealed. Affirmed.

SYLLABUS

Complaint bad for misjoinder of causes and parties.

A complaint against two defendants, alleging that their negligence caused an injury to plaintiff, is bad as against a demurrer for misjoinder of causes, where it appears upon the face of the pleading that the acts of negligence were separate torts, not concurrent in point of time or effect.

Henry M. Gallagher, for appellant.

Brown Somsen & Sawyer and Moonan & Moonan, for respondents.

OPINION

QUINN, J.

Appeal by the plaintiff from an order sustaining a demurrer interposed by each of the defendants upon the grounds that several causes of action are improperly joined and that it appears upon the face of the complaint that there is an improper joinder of parties defendant.

The defendant railway company is the owner of a line of railroad extending west from Winona through Waseca to Tracy in this state. The defendant Davis, as agent of the President, operated the road from January 1, 1918, to March 1, 1920. The railway company then took control and operated it. Plaintiff was employed by the director general as sand-house man at Waseca until March 1, 1920, when the railway company took control, and thereafter he remained in its employ until October 1, 1920.

It is alleged in the complaint that between January 1, 1918, and October 1, 1920, plaintiff was employed by the defendant in the capacity of a sand-house man; that a part of his duty consisted in attending to the machinery and appliances used in preparing and drying sand for use by the railway company on its locomotives and tracks; that the green sand was kept in a building within about 20 feet from the building where there is a large drier in which sand was heated and dried; that the drier was connected by a large pipe leading to an elevated tank known as the sand tank; that the sand, in the process of drying, was blown and carried from the drier through such pipe into the sand tank; that it was the duty of plaintiff to wheel the sand from the building where the green sand was kept, through an open space of about 20 feet, dump the same into the drier and look after its operation; that, while so employed, the pipe leading from the drier to the sand tank became worn and out of repair so that fine sand and the fumes therefrom escaped from the pipe and filled the atmosphere with a sand steam which plaintiff was compelled to inhale to such an extent as to seriously affect his lungs and entire system, obliging him to discontinue his work about the first of October, 1920.

It appears from the pleading, as we read it, that the defendant railway company had nothing to do with plaintiff's employment until it assumed operation of the system in March 1920. Plaintiff had then been in the employ of the director general in the...