Sun Oil Co. v. Robicheaux, (No. 1277-5323.)

• Decision Date: 05 February 1930
• Docket Number: (No. 1277-5323.)
• Parties: SUN OIL CO. et al. v. ROBICHEAUX et al.
• Court: Texas Supreme Court

23 S.W.2d 713

SUN OIL CO. et al. v. ROBICHEAUX et al.

(No. 1277-5323.)

Commission of Appeals of Texas, Section A.

February 5, 1930.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by M. Robicheaux and another against the Sun Oil Company and others. Judgment for defendants was reversed and remanded , and they bring error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

T. L. Foster, of Dallas, and T. J. Cartwright and C. A. Toler, both of Beaumont (Ben H. Powell, of Austin, of counsel), for plaintiff in error Sun Oil Company.

R. E. Masterson, of Beaumont (Ben H. Powell, of Austin, of counsel), for plaintiffs in error Baker Oil Company, Unity Oil Company, and Stella Oil Company.

John E. Green, Jr., Claude McCaleb, Peveril O. Settle, and John Broughton, all of Houston, J. Llewellyn, of Liberty, and F. J. & C. T. Duff, of Beaumont, for plaintiff in error Gulf Production Company.

A. D. Lipscomb and Howth, Adams & Hart, all of Beaumont, for defendants in error.

CRITZ, J.

This suit was filed in the district court at Jefferson county, Tex., by M. Robicheaux and his landlord, J. M. Broussard, against the Sun Oil Company and numerous other alleged oil producers, who were producing oil on what is generally known as Spindle Top Hill in said county, to recover damages for alleged loss of rice crops during the years 1924 and 1925 on account of salt water being drained into the bayou, and its waters thereby polluted, by the oil producers named as joint defendants in the suit.

For convenience we will hereafter refer to M. Robicheaux and J. M. Broussard as plaintiffs, and to the Sun Oil Company and the other plaintiffs in error as the oil producers.

It is shown by the pleadings and the evidence that Broussard was the owner of certain lands abutting on Hillebrandt bayou. He rented this land in 1924 and 1925 to Robicheaux as his tenant to cultivate in rice. It is alleged and proven that the plaintiffs depended upon water from Hillebrandt bayou to irrigate the land in question.

Plaintiffs sued all of the oil producers as joint tort-feasors and prayed for a joint and several judgment against them. At the close of the testimony the trial court instructed the jury to return the verdict for the oil producers. The verdict was returned as instructed, and judgment entered accordingly. The case was duly appealed by the plaintiff to the Court of Civil Appeals at Beaumont, which court reversed the judgment of the trial court, and remanded the cause for a new trial. 10 S.W.(2d) 250. The case is now before the Supreme Court on writs of error, granted on applications of the several oil producers.

As we understand the record, the trial court instructed a verdict for the oil producers, on the theory that while some, if not all, such producers were shown to have contributed to the pollution of Hillebrandt bayou so as to render the water unfit for irrigation, and thereby damaged plaintiffs, still such producers were not answerable jointly because the pollution was shown by the undisputed evidence to be the result of separate and independent acts of the oil producing defendants, and therefore they were not jointly liable; and since such producers were not jointly liable it was a misjoinder of parties and causes of action to seek joint recovery in one suit against the several oil producers for their separate and independent acts.

The Court of Civil Appeals reversed and remanded the cause holding that there is evidence in the record in law sufficient to raise the fact issue as to whether the oil producers here sued, acted jointly, and in concert, in the pollution of the waters of the bayou.

The oil producers all assigned the above holding as error in their applications for writs of error and the writs were granted on such assignments.

We are met at the threshold of this case with a motion by the plaintiff to dismiss the writs of error on the ground that the assignment upon which the writs were granted raises an issue of fact, that is, raises the question as to the sufficiency of the evidence to support the conclusion of fact made by the Court of Civil Appeals. We think that the assignment properly invokes the jurisdiction of the Supreme Court, and that the motion to dismiss the several writs should be overruled. The assignment does not have effect to complain of a finding by the Court of Civil Appeals on a controverted issue of fact, but has effect to say that there is no competent evidence in the record to support the holding of the Court of Civil Appeals. In other words, it is not a finding or a controverted issue of fact that is before the Supreme Court, but a question as to whether there is any evidence in the record admitted or excluded or both, legally sufficient to have sustained a verdict and judgment for plaintiff in the trial court had there been one. The Supreme Court has ample jurisdiction to hear and determine this issue, as its effect is to raise a question of law and not a finding of fact. Gainsville Water Co. v. City of Gainsville, 103 Tex. 394, 128 S. W. 370; Guisti et al. v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167; Clarendon Land Investment Agency Co. v. McClelland Bros., 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105; Henderson v. U. S. Fidelity, etc., Co. (Tex. Com. App.) 10 S.W.(2d) 534; Santa Rosa Infirmary v. City of San Antonio (Tex. Com. App.) 259 S. W....