Robicheaux v. Gulf Production Co.

• Decision Date: 30 January 1934
• Docket Number: No. 2418.,2418.
• Citation: 68 S.W.2d 221
• Parties: ROBICHEAUX et al. v. GULF PRODUCTION CO.
• Court: Texas Court of Appeals

Page 221

68 S.W.2d 221

ROBICHEAUX et al. v. GULF PRODUCTION CO.

No. 2418.

Court of Civil Appeals of Texas. Beaumont.

January 30, 1934.

Rehearing Denied February 7, 1934.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by M. Robicheaux and others against the Gulf Production Company. From a judgment dismissing the suit, the plaintiffs appeal.

Affirmed.

Howth, Adams & Hart and A. D. Lipscomb, all of Beaumont, for appellants.

O. S. Parker and Duff & Cecil, all of Beaumont, for appellee.

O'QUINN, Justice.

This suit was filed in the Sixtieth district court of Jefferson county on May 23, 1927, by appellants M. Robicheaux and J. E. Broussard against appellee, Gulf Production Company, to recover damages to rice crops for the years 1924 and 1925, alleged to have been caused by pollution of the waters of Hillebrandt bayou, the source of fresh and pure water for irrigating their said rice crops. The pollution was alleged to have been caused by appellee's permitting and causing salt water and water contaminated with other minerals and substances to be pumped from its oil wells at Spindletop oil field near said bayou, and to accumulate in ditches, reservoirs, and storage tanks, and to escape and flow into said bayou, contaminating its waters, and damaging and destroying their said crops.

June 7, 1927, defendant, Gulf Production Company, filed its plea in abatement asking that the suit be dismissed because at the time this suit was filed there was pending in the Fifty-eighth district court of Jefferson county, another suit by appellants as plaintiffs against it, Gulf Production Company, for the same identical cause of action as exhibited in the instant suit, said former suit being numbered 25625 on the docket of said Fifty-eighth district court, the instant suit being No. 28673 on the docket of said Sixtieth district court. Said plea in abatement stated that while in said suit No. 25625 there were several parties defendant other than the defendant Gulf Production Company, yet they were each and all sued as joint tort-feasors and the cause of action set forth in said suit was and is identical with the instant suit No. 28673, and attached a copy of plaintiffs' amended petition in said suit No. 25625 as an exhibit.

June 7, 1927, defendant Gulf Production Company also filed plea of res adjudicata, that at the ____ term, A. D. 1927, of the Fifty-eighth district court of Jefferson county, Tex., in cause No. 25625 on the docket of said court, plaintiffs in the instant suit were plaintiffs and Gulf Production Company was a defendant, and for the same cause of action in said petition mentioned, it was adjudged and decreed by the court that plaintiffs take nothing by reason of their said cause of action asserted in said suit No. 25625, and that this defendant Gulf Production Company go hence without day, as fully appears by the proceedings in said cause No. 25625 of record in the minutes of the court; that said judgment in said suit was still in full force and effect, in no wise reversed, satisfied, or made void, wherefore it prayed that plaintiffs take nothing by this suit and that it be discharged with its costs.

The record discloses that at the time the instant suit, No. 28763, was filed in the Sixtieth district court of Jefferson county, there was then pending in the Fifty-eighth district court of said county another suit, No. 25625, by the same plaintiffs as here, and against the defendant here, the Gulf Production Company, and some twenty other defendants, for the same damages as here alleged, flowing from the same cause as here alleged, and prayer for recovery by the same plaintiffs against this defendant with others, both jointly and severally, and in the instant case against the defendant Gulf Production Company alone.

That plaintiffs' suit in cause No. 25625 in the Fifty-eighth district court against defendant Gulf Production Company and others, and in their instant suit in the Sixtieth district court against the defendant Gulf Production Company alone, was for the same identical damages, based upon the same negligent acts, resulting in the same damages, we think plainly appears. In fact appellants in their brief herein say:

"The above evidence shows suit No. 25,625 involved the same alleged damage to the crops of 1924 and 1925, that the defendant in this suit was one of the defendants in the former, and that plaintiffs sued in the same capacity in both actions. So much may be admitted and thus economize the court's time."

From the third amended original petition of plaintiffs, that being the petition upon which the case was tried, in cause No. 25625, in the Fifty-eighth district court, we take the following excerpts, which alleged separate acts of the there defendants as resulting in the damages by said suit sought:

(a) "* * * That said lands, with the water rights incidental thereto as riparian lands, are of great value in the absence of the wrongful acts complained of; that the defendants and each of them continually, from year to year, pollute said waters in the same way and like effect as in 1924 and 1925, and threaten to continue indefinitely such pollution, and will, unless enjoined therefrom."

(b) "* * * The plaintiffs further allege that before the crop was planted, to-wit: prior to the first day of March and between the said first day of March and the first day of January, 1924, the defendants and each of them turned into said bayou large quantities of salt water, containing high salt content and other minerals injurious to plant life, and which said polluted waters and a large portion thereof remained in said bayou during the growing season of that year" (1924) "* * * and plaintiffs further say that sometime in June or July of 1925, the salt water storage tank of the defendant, Gulf Production Company, lying northwest of what is known as Spindletop Hill, in which a large quantity of salt water produced by the Gulf Production Company and other defendants herein named, was stored, broke loose by reason of insufficiency of its banks and levees both in strength and height, * * * and that the salt water containing other deleterious mineral substances were caught, collected and held by levees and dams in large quantities * * * near the waters of Hillebrandt Bayou, and thereafter the levees and embankment which held and retained said large quantities of salt water so escaping from defendants' regular storage tank broke loose and gave way on account of insufficiency of the levees both in strength and height and on account of rainfalls, which the defendants could and must have foreseen and provided for, and all of the said waters escaped into Hillebrandt's Bayou and polluted the same and made it unfit for irrigating purposes, * * * and plaintiffs further say that a large portion of the salt water produced by each and all of the defendants during the growing seasons of 1924 and 1925 and prior to said times, were permitted to escape and reach Hillebrandt's Bayou through the road ditches and other means of drainage without first impounding the same in reservoirs. * * *"

(c) "That the discharge of the said injurious substances from said wells of defendants onto the surface of the said watershed combining them to flow into said bayou was either a willful or negligent act of each defendant, directly and necessarily and proximately contributing to the injuries complained of, and well known to each defendant, all of whom operated in the same territory of production to concur with the acts of others to produce the injuries herein complained of; and that such wrongful acts of defendants were the proximate cause of the injuries herein complained of."

(d) "Plaintiffs represent that the injury to, and damage sustained by them, was caused and occasioned by the polluted water as polluted by defendants, it being the only water available to plaintiffs for irrigation purposes; that but for the pollution caused by defendants as herein alleged, plaintiffs' crops would have matured crops of 14 bags (or barrels) per acre."

In said petition, plaintiffs prayed "and for all such other relief, general and special, as plaintiffs may be entitled to in law or in equity."

In said suit No. 25625, the defendant Gulf Production Company filed separate answer to plaintiffs' said petition, consisting of a general demurrer, a number of special exceptions, and by general denial and numerous other pleas in bar. The special exceptions (which in effect were general demurrers directed against the allegations in plaintiffs' petition of separate and individual acts of the defendants as a basis for recovery of the alleged damages) were Nos. 25, 26, and 31. They read:

Special exception 25: "Defendant further specially excepts to said pleading and petition and all that portion thereof wherein it is sought to recover damages against these defendants by reason of their separate and individual acts with respect to the wrongs therein alleged for that it appears from said petition that plaintiffs are unable to determine the amount of damages resulting from each of said individual acts, as alleged, and therefore, said pleading shows no cause of action based on said separate and independent acts as therein alleged."

Special exception 26: "Defendant specially excepts to all of that portion of said petition wherein it is sought to recover herein against the defendant upon and for the separate and individual acts of each defendant, for that it is not alleged what amount or proportion of the injuries sustained was the direct and proximate result of such wrongful acts on the part of each defendant, separately."

Special exception 31: "This defendant further specially excepts to all that portion of said petition and particularly paragraph 15 thereof and that portion of paragraph 15 seeking recovery for the water discharged from said storage tank and the breaking of said storage tank belonging to this defendant for it nowhere...