Standard Phosphate Co. v. Lunn

• Decision Date: 28 October 1913
• Citation: 63 So. 429,66 Fla. 220
• Parties: STANDARD PHOSPHATE CO. et al. v. LUNN.
• Court: Florida Supreme Court

63 So. 429

66 Fla. 220

STANDARD PHOSPHATE CO. et al. v. LUNN.

Florida Supreme Court

October 28, 1913

Error to Circuit Court, Polk County; F. A. Whitney, Judge.

Action by George W. Lunn against the Standard Phosphate Company, a corporation, and another. Judgment for plaintiff, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

A joint tort is essential to the maintenance of a joint action for damages therefor against several parties. For separate and distinct wrongs in no wise connected by the ligament of a common purpose, actual or implied by law, the wrongdoers are liable only in separate actions and not jointly in the same action.

Torts that are several, separate, and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences, where no concert of tortious action or consequence is intended by the parties or implied by law.

When properly tested by demurrer or other appropriate procedure ambiguities in a pleading should be construed against the party in whose interest the ambiguous language is used; yet a court may not be held in error for overruling a demurrer to an ambiguous pleading, where such a pleading does not put the opposing party at a disadvantage, and when under the allegations or averments of the pleading a cause of action or a defense may fairly be shown by proper evidence.

The mere fact that matter put into a stream by two defendants each at its separate plant located at different points, may have united or intermingled in increasing the injurious consequences to the plaintiff's land lower down the stream, and that the damage done by each defendant may because of such intermingling of consequences, be difficult of ascertainment, do not render the defendants liable to an action as joint tort-feasors so as to make each liable for the damage done by both, where there is no common purpose or concert of action or intention to act together either actual or implied by law, and where the injury was not caused by the union or intermingling of the matter put into the stream.

Where in an action at law for damages the evidence does not show a joint liability, a joint judgment is erroneous, and will be reversed.

COUNSEL E. R. Gunby, of Tampa, and Wilson & Swearingen, of Bartow, for plaintiffs in error.

OPINION

WHITFIELD J.

The amended declaration herein is as follows:

'George W. Lunn, a citizen and resident of the county of Polk, and state of Florida, by Thomas Palmer, his attorney, sues the Phosphate Mining Company and the Standard Phosphate Company, both corporations existing under the laws of the state of Florida, and each doing business and each having a general agent and general office in the county of Polk and state of Florida, which said defendants have been duly summoned to answer the plaintiff in a civil action, damages $10,000.

'For that the plaintiff, on the 1st day of November, A. D. 1908, and from thence hitherto, has been and how is the owner in fee simple, and has been and now is lawfully possessed of, the following described real estate, to wit:

S. E. 1/4 of S.W. 1/4, and S.W. 1/4 of S.W. 1/4 of section 22 in township 29, south of range 23 east, located in the county of Polk aforesaid, and upon which said real estate of plaintiff is, and during all of the time aforesaid has been, located the plaintiff's home wherein the plaintiff has lived, and the plaintiff's farm, whereon the plaintiff is now and during all of the time aforesaid has been engaged in the occupation of farming and live stock raising; that said real estate of plaintiff is very valuable for the purposes aforesaid, and also very valuable for and on account of the large deposits of phosphate and phosphate mining material upon and underneath plaintiff's said land; and said land is very valuable as agricultural land and for farming purposes and also for the timber growing thereon; that meandering through said real estate of plaintiff there was at the date aforesaid, and ever since has been, and now is, a creek, branch, and stream of water, the same being the natural drainway for plaintiff's said lands, which same will hereinafter be designated as stream; that said stream of water so flowing through plaintiff's land enters plaintiff's said land upon the eastward side thereof, and flows in a general westward direction through plaintiff's said land; that said stream of water prior to the wrongs and injuries hereinafter complained of the defendants was used by the plaintiff for the purpose of watering plaintiff's live stock, and also for the purpose of furnishing plaintiff drinking water, and also used by the plaintiff for fishing and catching fish therein for his own use; and that over said stream of water the plaintiff exercised full control upon his own premises, and frequently crossed and recrossed, and was compelled to cross and recross, said stream in going about his business, and in going from and returning to his place of residence aforesaid.

'That to the eastward of plaintiff's lands above described and near to the same, and situated upon the stream above described, flowing as aforesaid through plaintiff's said land, and upon tributaries of said stream being above and up said stream from plaintiff's said lands, both of the defendants herein, on the said 1st day of November, A. D. 1908, owned, operated, and controlled each a separate phosphate mining plant, and from thence hitherto has and now owns, operates, and controls each a separate phosphate mining plant, said plant consisting of lands, mining and otherwise, buildings, and machinery, and used by each of the said defendants for the purpose of mining phosphate and phosphatic material, and for washing and otherwise preparing their said output of phosphate and phosphatic material for sale in the market.

'That it then became and was the duty of each of the defendants aforesaid to so operate and carry on its mining operations upon its said lands as to prevent and not allow the waste from said mining plants to escape from its said mining plant, and into the stream aforesaid above the property of the plaintiff, and to prevent the same from being carried down by the said stream to the lands of plaintiff above described, to the injury of the plaintiff and his said lands; and that the defendants and both of them should have so conducted their mining plants aforesaid as to prevent the injury to the plaintiff as hereinafter set forth.

'But on the contrary, on the 1st day of November, A. D. 1908, both of the defendants did, unlawfully and injuriously to the plaintiff and to plaintiff's said land, dump, pour, flush, discharge, turn loose upon, and deliver into said stream, near each of their said mining plants, and from thence hitherto have, and now are continuing to dump, throw, pour, flush, discharge, turn loose, and deliver upon and into said stream above described, so running as aforesaid through plaintiff's lands, and to the eastward and above plaintiff's said lands, large quantities of sand, dirt, slush, mud, clay, and dirty water, from each of the defendant's said mining plants, so that the said stream so running as aforesaid from the defendants' said plants to and through the plaintiff's said lands has become contaminated with the same, thereby rendering said stream unfit for the watering of live stock, and thereby killing and destroying the fish therein, and thereby rendering said stream unfit for...