Ryan Gulch Reservoir Co. v. Swartz

• Decision Date: 02 March 1925
• Docket Number: 10947.
• Parties: RYAN GULCH RESERVOIR CO. et al. v. SWARTZ.
• Court: Colorado Supreme Court

234 P. 1059

77 Colo. 60

RYAN GULCH RESERVOIR CO. et al. v. SWARTZ.

No. 10947.

Supreme Court of Colorado, En Banc.

March 2, 1925

Rehearing Denied April 6, 1925.

Rehearing Denied April 6, 1925.

Error to District Court, Larimer County; Francis E. Bouck, Judge.

Action by John Swartz against the Ryan Gulch Reservoir Company and another. Judgment for plaintiff, and defendants bring error.

Reversed and remanded.

E. S. Allen, of Loveland, Stow & Stover and W. K Lilley, all of Ft. Collins, for plaintiff in error Ryan Gulch Reservoir Co.

Henry S. Sherman, of Ft. Collins, for plaintiff in error South Side Irrigation & Reservoir Co.

Ab H Romans, of Loveland, and Paul W. Lee and George H. Shaw, both of Ft. Collins, for defendant in error.

CAMPBELL J.

Ryan Gulch in Larimer county is a natural depression, the waters of which flow into the Big Thompson river. In this gulch are two reservoirs, one owned by the Ryan Gulch Reservoir Company, the other by the South Side Irrigation & Reservoir Company, who were joined as defendants in this action by plaintiff John Swartz, who recovered a joint judgment against them for damages to his growing crops and lands caused by the release of the impounded and other waters when the embankments of the reservoirs gave way. The reservoir sites are in different townships, just how far separated in space the record does not disclose. Each reservoir is owned and managed by a different corporation. The facts tend to show that in June, 1921, there was an unusual and unprecedented flood or closud-burst in the vicinity of this gulch such as had never before occurred in that locality within the memory of the oldest residents. The water filled Ryan Gulch above and below the reservoirs, and the ground was covered with a wide expanse of water of considerable depth. The until after darkness set in. The reservoirs until after darkness set in. The reservoirs held and their impounded water remained therein until after 9 o'clock in the evening, and during the period between 3 and 9 o'clock the heavy downpour of rain was practically continuous. The reservoirs were filled, and great quantities of water overflowed therefrom for some time before the embankments gave way after 9 o'clock. On this review defendants below, plaintiffs in error here, have assigned numerous errors, which have been thus grouped for argument:

(1) The court erred in striking parts of the testimony of the defendants' witness Ebett.

(2) There was no joint liability, there being a misjoinder of parties defendant; and an actual failure by the evidence to establish joint liability, and, at best, tending to prove, if anything, only a separate liability of each defendant for its own independent and separate contribution to the single injury suffered by the plaintiff.

(3) The third separate defense of the answer of each defendant is that plaintiff's injury was the result of the act of God and, as the evidence in its support was clear and undisputed, defendants are not liable at all.

1. Defendants' witness Ebett testified that the next morning after the flood he had a brief conversation with the plaintiff on the latter's farm. Mr. Swartz was looking out over his ranch, and the witness came up behind him touched him on the shoulder, and as Swartz looked around the witness said:

'Hello, Jack. That is pretty tough, isn't it? and he looked considerably worried, and he said: Yes; that is hell, but nobody on earth could help it.'

The plaintiff moved to strike this testimony as irrelevant and immaterial, and the court granted the motion, and the defendants saved an exception. Under the authority of Holman v. Boston L. & S. Co., 20 Colo. 7, 11, 12, 36 P. 797, this was error. One of the defenses interposed, which we think a good one, was that the cause of the injury, if any, was the act of God. The alleged admission of the plaintiff, that 'nobody on earth could help it,' was material and competent on this defense. In effect it was that the injury was unavoidable--could not have been prevented. Its weight and sufficiency were for the jury. In the Holman Case testimony by the plaintiff was admitted that a fire occurred without fault on the part of the defendant. Striking of it thereafter was held to be reversible error.

2. Each defendant filed a separate demurrer to the complaint upon the ground that damages were asked of each defendant for the injury caused by the breaking of its own separate reservoir, and the complaint showed on its face that the damages arose from two distinct and separate instrumentalities or sources of the two separate and distinct defendants, and thereby there was a misjoinder of parties defendant. The court overruled this demurrer, and we think properly so, but if the ruling was wrong error may not now be predicated on it. Upon the overruling of the demurrer each defendant answered over.

The general rule in this jurisdiction is that where a demurrer to the complaint on any of the code grounds, except jurisdiction and insufficiency of facts, is overruled the defendant waives error, if any, by answering over without objection and going to trial on the merits. Mills' Anno. Code, edition 1905, p. 146, § 50, note 58 et seq.; Id. p. 699, § 394, note 142; Keys v. Morrison, 3 Colo.App. 441, 34 P. 259; G. W. M. Co. v. W. of A. M. Co., 12 Colo. 46, 64, 20 P. 771, 13 Am.St.Rep. 204; Farncomb v. Stern, 18 Colo. 279, 32 P. 612; Zobel v. Fannie Rawlings Co., 49 Colo. 134, 137, 111 P. 843; Colorado City v. Worley, 23 Colo.App. 456, 130 P. 826.

All of these cases say that the objection on the ground of misjoinder must be taken by demurrer if the defect is apparent on the face of the complaint; otherwise it must be taken by answer and, as stated in the Keys Case, the Code restricts the right to raise the question in the answer if the defect be not thus apparent on the face of the complaint, and failure to take advantage of the error in either of the two ways is deemed to be a waiver. The defendant in error, plaintiff below, does not make the point, and if he did it would not be tenable, that this ruling on the demurrer prevents the defendants from setting up in answer facts which, if sustained by the evidence, show no joint liability of the two defendants but only a separate liability of each one, if any, for its own separate acts. So far as concerns the question of misjoinder of parties defendant, the court's order overruling the demurrer is final and not reviewable by this court. Defendant in his answer, or otherwise, may not thereafter attack the complaint in that particular. Car Coupler Co. v. League, 25 Colo. 129, 134, 54 P. 642. He may, however, as was done here, set forth in his answer as a defense facts which, though they may not be used in an attack upon the complaint as disclosing misjoinder of parties defendant, constitute a defense to defeat a recovery on the ground that the defendants were not guilty of any joint act or acts that caused the injury.

We are of opinion that whether on its face a complaint does or does not reveal a misjoinder of parties defendant and a demurrer on that ground by the separate defendants is overruled, and the defendants either jointly or separately answer on the merits, they may therein plead a state of facts which shows no joint liability. Otherwise expressed, where a defendant demurs for misjoinder of parties defendant and his demurrer is overruled, he may in his answer include as a separate defense facts showing no joint liability, though bound by the ruling of the court that the complaint on its face is not defective because of a misjoinder of parties defendant. Adams v. Clark, 36 Colo. 65, 90, 85 P. 642, 10 Ann.Cas. 774. In Livesay v. First National Bank, 36 Colo. 526, 532-533, 86 P. 102, 6 L.R.A. (N. S.) 598, 118 Am.St.Rep. 120, it was held that a cause of action in a complaint that alleges a joint tort is not established where the proof is that the alleged injury was occasioned by the separate and distinct torts of two or more defendants. This is the real point made by defendants here. The court in the Livesay Case said that there must be something more than the existence of a separate cause of action for the same act or default to enable a plaintiff to join the two parties defendant in the single action.

After the demurrer for alleged misjoinder was overruled, each defendant in this case, by a third and separate defense pleaded facts which on their face show that the single injury inflicted upon the plaintiff, if committed by these defendants, was not the result of their joint action or combination of action; that they did not act in concert or join in any manner whatever in causing the alleged injury; that each of the reservoirs in question, situate in different townships, was owned and operated by a different defendant in which the other defendant had no interest or voice whatever. To this defense the demurrer of the plaintiff was sustained. We think there was error in this ruling, for if there was no concert of action between the two defendants, either of omission or commission, no concurrence either in time or place of the two distinct and separate acts, or series of acts, there was no joint liability, even though each defendant, had he been sued alone, might he liable for damage. They could not, however, in such circumstances, be sued jointly. Keyes v. Little N.Y. G. Wash. & Waters Co., 53 Cal. 724; Blaisdell v. Stephens, 14 Nev. 17, 21, 33 Am.Rep. 523; Gallagher...