Mosby v. Manhattan Oil Co.

• Decision Date: 02 October 1931
• Docket Number: No. 9052.,9052.
• Parties: MOSBY v. MANHATTAN OIL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

77 ALR 1099, 52 F.2d 364 (1931)

MOSBY v. MANHATTAN OIL CO.^*

No. 9052.

Circuit Court of Appeals, Eighth Circuit.

August 10, 1931.

Rehearing Denied October 2, 1931.

Byron Spencer, of Kansas City, Mo. (H. M. Langworthy, Frank H. Terrell, Scott W. Bovey and Robert G. Merrick, all of Kansas City, Mo., on the brief), for appellant.

Henry L. Jost, of Kansas City, Mo., for appellees.

H. H. Booth, of Kansas City, Mo., for appellees Manhattan Oil Co. and Phillips Petroleum Co. R. E. Cullison and C. C. Julien, both of Bartlesville, Okl., for appellee Empire Gas & Fuel Co.

Before KENYON and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a judgment in favor of defendants after demurrers to plaintiff's evidence had been sustained and verdict had been directed in favor of defendants.

The action was one for damages claimed to have resulted from a nuisance alleged to have been created and maintained by defendants.

The second amended complaint alleged the following facts in substance: Plaintiff is the owner of a large ranch in Greenwood county, Kan., and is engaged in raising and fattening cattle thereon. The ranch is traversed by a stream known as the West branch of the Fall river, which is the only source of water supply for said cattle. During the spring and summer of 1926, plaintiff placed a large number of cattle upon said ranch for the purpose of raising and fattening them. During said time, defendants were drilling for and producing oil on land adjacent to the east of said ranch and on a small portion of said ranch. The land on which the drilling operations were carried on was higher than plaintiff's ranch and drained onto and over the same and into the stream which traversed plaintiff's ranch. Defendants concurrently and continuously in the spring and summer of 1926, in drilling for and producing oil, as stated, permitted large quantities of salt water and crude oil to escape from wells, pumps, and collection pools into said stream, and the said salt water and oil was carried down said stream and through and upon plaintiff's ranch, and accumulated in depressions on said ranch, and spread over said ranch, and made said ranch unfit for stock-raising, and deprived plaintiff of the proper use of his ranch — all to his damage. Plaintiff learned of the pollution of the stream about June 25, 1926. Cattle will not fatten when the water supply is polluted in the manner and to the extent that said stream was polluted. Owing to said pollution of said stream, the cattle on plaintiff's ranch did not fatten as they otherwise would have done, all to plaintiff's damage. Plaintiff was put to added expense in trying to furnish food and proper drink for said cattle. Defendants acted knowingly and in wanton disregard of plaintiff's rights in permitting said salt water and crude oil to escape into said stream and to be carried down said stream and through and upon plaintiff's ranch.

On the trial there was evidence tending to prove the ownership of the ranch and cattle thereon by plaintiff, the drilling operations for oil by defendants, the escape of salt water and crude oil in connection with said drilling operations into said stream and down the same through plaintiff's ranch, and damages suffered by plaintiff by reason of the pollution of the stream. There was no proof of concert of action between the several defendants in permitting the escape of salt water and oil from their respective plants, but the evidence tended to prove that, although the three defendants were conducting their oil operations separately, each independently of the others, they all concurrently permitted salt water and crude oil to escape from the places where they were conducting their operations and enter the stream which flowed through plaintiff's ranch, at a point or points immediately above or just below the place where the stream enters the plaintiff's ranch. The evidence further tended to prove that the salt water and refuse crude oil, so permitted to escape from the places of the operations of the three defendants, subsequently became diffused with the water of the stream, causing its pollution, so that it became unfit and unhealthful for the cattle to drink.

One of the grounds of the motions by defendants for a directed verdict was as follows: "Because it appears from the petition, and from the evidence, that there is a misjoinder of parties and of causes of action herein, and that if plaintiff has any cause of action against this defendant (which defendant does not concede but to the contrary denies) plaintiff is obliged under the law to pursue such remedy in a separate action and suit against this defendant."

It was upon this ground that the trial court granted motions for an instructed verdict.

In an opinion¹ accompanying the granting of the motions, the court said:

"* * * `Where the injury is the result of the concurring negligence of two or more parties, plaintiff, at his election, may sue such parties either severally or jointly.' That general statement of the law is supported by numerous decisions in Missouri. * * *

"It is necessary that the injury be the result of the concurring negligence of the several persons sued before they can be jointly sued. The word `concurring' and the word `concurrent' are extraordinarily important words in this connection. They describe an element that must be present before tort feasors acting separately may be joined in one action. In my statement of the facts of this case, I should have said that the evidence is that each of these several oil companies was acting independently of the other two in the matter of drilling for oil and disposing of salt water.

"Now, what is meant by the word `concurrent'? * * * Certainly it is not meant by the word `concurrently' that an act is done concurrently or that acts are done concurrently by two persons merely because they are simultaneous in point of time. Certainly it is not meant by the word `concurrently' that two acts are done concurrently because the result of the two acts in turn produce a certain ultimate consequence. * * * The negligence of the several parties concerned must either be the result of concerted action, joint action, or it must unite to cause one injury — a single injury — the injury complained of, before the law is satisfied, which demands that the negligence must be concurrent — if different persons acting independently are to be joined in one suit. * * *

"Now, in this case there is evidence tending to show that each of these defendants independently of the other caused to be thrown into the plaintiff's stream, salt water. My view is that each of them inflicted upon the plaintiff a separate and distinct injury. It was a wrong against the plaintiff for any person to negligently throw salt water into the stream. When the salt water was thrown into the stream the injury was done; the wrong was committed then. Damages were something that might follow thereafter. That was the injury. Each of them acting independently of the other has inflicted a separate and distinct injury upon the plaintiff. Their acts did not concur in causing plaintiff's injury. The fact that the damage which he ultimately suffered may have resulted from the combined effect of the several and distinct injuries inflicted on him by the defendants does not render their acts concurrent, as I understand the law, and as I understand the meaning of the word `concurrent.' * * *

"The rule may be otherwise, and it is said that it is otherwise in Kansas. * * * But I am satisfied that this question must be determined by the law of the forum and not by the law of Kansas. A matter concerning the remedy and not the right is to be determined here by the law of Missouri as that law is declared by the Supreme Court of Missouri. I think the plaintiff has not proved in this case that these independent acts of negligence separately committed by the several defendants, were concurrent acts of negligence."

The first main question which arises is whether the present suit could be maintained in the courts of the state of Kansas. The leading Kansas cases follow:

Kansas City v. Slangstrom, 53 Kan. 431, 36 P. 706. The city diverted a stream and made an embankment below Slangstrom's property, and then made a sewer through the embankment. The sewer was too small. The Orchard Place Land Company thereafter extended the sewer through its land. The latter part broke down. Plaintiff's land was flooded. Plaintiff sued the city and the company, and charged that the combined wrongdoing of defendants caused the injury. Held, "as the acts of either one would have occasioned injury, and as both contributed in obstructing the stream, a joint liability arises. * * * The fact that they did not act at the same time and upon the same part of the obstruction is immaterial, when it appears that the wrongdoing was concurrent and combined in producing the injury."

Arnold v. Milling Co., 86 Kan. 12, 119 P. 373, 374. Action was brought by Arnold against the milling company, railway company, et al., for damages caused by defendants obstructing the flow of a river. The complaint alleged the milling company and other defendants had obstructed the flow by a dam; that the railway company, in building a bridge, had constructed an embankment which operated to dam the river; that these acts and these obstructions, operating jointly and contemporaneously, caused the river to overflow, to the damage of plaintiff. On motion, plaintiff was ordered to state his cause of action against the railway company and against other defendants separately. Plaintiff refused. The action was dismissed. Held error. The court said: "The averments, in effect, are that the misfeasances charged against each operated jointly and contemporaneously in producing the overflow." It is to be noted that there was no concert of action; but that the combined acts of the defendants produced the results.

Luengene v. Power Co., 86 Kan. 866...