Sun Co. v. Wyatt

• Citation: 107 S.W. 934
• Parties: SUN CO. et al. v. WYATT.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 06 January 1908
• Court: Court of Appeals of Texas

107 S.W. 934

SUN CO. et al. v. WYATT.^*

Court of Civil Appeals of Texas.

January 6, 1908.

Rehearing Denied January 30, 1908.

Error from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by W. C. Wyatt against the Sun Company and others. From a judgment for plaintiff, defendants bring error. Reversed.

Greer, Minor & Miller, for plaintiffs in error. McDowell & Duffie and C. A. Lord, for defendant in error.

REESE, J.

This suit was instituted in the district court by W. C. Wyatt against the Sun Company, the Security Oil Company, and the Higgins Oil & Fuel Company, seeking to recover damages for a nuisance alleged to have been created by placing, operating, and maintaining certain pipe lines by defendants for the conveyance of crude oil along the street in front of his premises. An injunction was also prayed for, but that issue is not involved in this appeal. By the verdict of the jury, plaintiff was awarded damages as follows: Against the Security Oil Company, $700; against the Sun Company, $500; and against the Higgins Oil & Fuel Company, $300. From the judgment, defendants prosecute this appeal by writ of error.

The gravamen of plaintiff's action is that the defendants, each of whom, it is alleged, has acted for itself, laid their pipe lines in the ditch alongside of Highland avenue in the city of Beaumont, on which plaintiff has his residence, and immediately in front of plaintiff's premises; that the combined result of these acts obstructed the flow of the surface water through the ditch; that by reason of leakage, oil which was being conveyed through the pipe lines ran into the ditch, and after a rainfall, by the overflow of this water, caused by the obstruction aforesaid, was carried by the water and deposited upon plaintiff's premises, causing him the damages claimed.

Defendants each severally pleaded a special demurrer to plaintiff's petition for misjoinder of parties defendant. Referring to plaintiff's petition, defendants aver in their special demurrer that "it contains no averments of a common ownership or operation of the pipe lines in question, nor does it allege any common design, purpose, concert, or joint action on the part of the defendants in causing or maintaining the nuisance and other wrongs alleged by plaintiff; but, on the contrary, it clearly appears from the petition that the defendants are distinct corporations, owning separate pipe lines, which they severally operate, without any connection, and independently of each other, and that each defendant is liable for the injuries, if any, caused by it, and can only be sued in a separate action therefor." These special demurrers were each severally overruled, and this action of the trial court is made the basis of the first assignment of error.

So much of the petition as is necessary to show the force of these demurrers is as follows: "That each of the defendants, which are each corporations, as aforesaid, are engaged in the oil business, and as such transfer and convey oil by means of pipe lines; that the said defendants, and each of them, in the prosecution of their business, and in conveying crude oil by means of their pipe lines aforesaid, constructed, laid, and established their said pipe lines along said Highland avenue and in a ditch on the side thereof, which ditch had heretofore been constructed and dug upon the side of said Highland avenue, in order to drain said road, and the property lying adjacent thereto, and which did so drain said road and adjacent property; that said defendants, and each of them, without any legal authority or right in them so to do, did on or about the _____ day of _____, 1901, lay a pipe along said ditch upon the side of said ditch, which is an open one, along, by, and in front of plaintiff's place of residence, and within four feet of his front gate to the yard surrounding his said residence and in front of his home, where he with his family resides." The petition further proceeds to state that the effect of the laying of the pipe lines in the ditch is to obstruct the flow of water, causing the overflow of water, and of the oil which escapes from the pipe lines into the ditch, onto plaintiff's premises. After a careful consideration of all of the authorities cited in the briefs of both parties, and such others as we have been able to find bearing on the question involved, we have concluded that the assignment should be sustained.

It does not appear from the allegations of the petition that there was any joint or concurrent action on the part of plaintiffs in error. On the contrary, it appears that each of the corporations joined as defendants acted independently of the others in the laying of the pipe lines and in maintaining and operating the same, each defendant laying its own pipe line and maintaining and operating the same without regard to, or connection with, either of the others. It is not contended by plaintiff that the defendants acted jointly in the laying of their pipe lines in the ditch, but that the combined result of their separate and independent acts was to obstruct the flow of water through the ditch, causing the consequential injury of which he complains, and that this authorized the joinder of all of them in this suit. The authorities are not uniform upon the question involved. Many of those cited by defendant in error (plaintiff below), however, are not in point, being cases where recovery was sought against two or more defendants for damages caused as the direct result of the concurrent negligence of each, or both combined. In such case they may be sued jointly or severally, and each may be held liable for the entire damage. Markham v. Houston Direct Navigation Co., 73 Tex. 247, 11 S. W. 131, is one of this class of cases where the injury is "the result of force directly applied, and not the consequential effects of the wrongful conduct or negligence constituting a nuisance." Swain v. Tenn. Copper Co., 111 Tenn. 430, 78 S. W. 94; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566. The same may be said of Southwestern Telegraph & Telephone Co. v. Crank (Tex. Civ. App.) 27 S. W. 40, Flaherty v. Northern Pacific Ry. Co., 39 Minn. 328, 40 N. W. 160, 1 L. R. A. 680, 12 Am. St. Rep. 654, Colgrove v. Railroad Co., 20 N. Y. 492, 75 Am. Dec. 418, and Chicago & W. I. R. R. Co. v. Marshall, 38 Ind. App. 217, 75 N. E. 973, cited in appellee's brief. The rule is that in such cases all such persons guilty of negligence contributing to the injury may be sued jointly or severally and each may be made liable for the entire damage. It is to this class of cases that the rule laid down in 15 Am. & Eng. Ency. of Pl. & Pr. (pp. 557, 558) applies, as will be seen from an examination of the cases cited in footnote to the text. The case of Blanton v. Kinchelo Irr. Co., 102 S. W. 744, 19 Tex. Ct. Rep. 495 we do not think supports appellee's contention. The decision seems to rest upon the fact finding that all of the parties acted together and in concert in cutting the canal and levees, thereby flooding plaintiff's land. The cases cited by the court in support of its conclusions sustain the contention of plaintiff in error in the present case. Respectable authority can be found, however, in support of the right to sue several defendants jointly, even in cases like the present one. Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; Elkhart Paper Co. v. Fulkerson, 36 Ind. App. 219, 75 N. E. 285; Simmons v. Everson, 124 N. Y. 319, 26 N. E. 911, 21 Am. St. Rep. 676. Hillman v. Newington, 57 Cal. 56, is another case which seems to support this view; but as authority in the...