Swain v. Tennessee Copper Co.

• Decision Date: 21 November 1903
• Citation: 78 S.W. 93,111 Tenn. 430
• Parties: SWAIN v. TENNESSEE COPPER CO. et al. COLE v. DUCKTOWN SULPHUR, COPPER & IRON CO., Limited, et al.
• Court: Tennessee Supreme Court

78 S.W. 93

111 Tenn. 430

SWAIN v. TENNESSEE COPPER CO. et al.

COLE v. DUCKTOWN SULPHUR, COPPER & IRON CO., Limited, et al.

Supreme Court of Tennessee.

November 21, 1903

Appeal from Circuit Court, Polk County; Geo. L. Burke, Judge.

Actions by A. W. Swain against the Tennessee Copper Company and another, and by Thomas L. Cole against the Ducktown Sulphur Copper & Iron Company, Limited, and another. From a judgment in favor of defendants, sustaining separate demurrers to the complaint for misjoinder of parties defendant, plaintiffs appeal. Affirmed.

B. B C. Witt and J. E. Mayfield, for appellants.

Cornick Wright & Frantz and R. M. Copeland, for appellee Tennessee Copper Co. J. G. Parks and G. C. Hyatt, for appellee Ducktown Sulphur, Copper & Iron Co.

SHIELDS J.

These two cases, brought against the same defendants and involving the same questions, were heard together in this court, and will be so considered in this opinion.

The plaintiffs, A. W. Swain and Thos. L. Cole, brought their separate suits in the circuit court of Polk county against the Tennessee Copper Company, a corporation under the Laws of New Jersey, and the Ducktown Sulphur, Copper & Iron Company Limited, a corporation under the laws of the kingdom of Great Britain and Ireland, jointly, to recover damages sustained by them, respectively, caused by a nuisance created and maintained by the defendants in the separate management and operation of the plants severally erected and owned by them.

The defendants interposed separate demurrers for misjoinder, which were sustained by the trial judge, and the plaintiffs have brought the cases before this court for review.

It appears from the allegations of the declarations, which are practically the same, that the plaintiffs are the owners of lands situate and lying near Ducktown, Polk county, Tenn., upon which they reside, and have gardens, orchards, and inclosed fields for the cultivation of fruits, vegetables, grains, grasses, and other farm products, and valuable growing timber.

That the defendants, separate and independent corporations, created and organized for the purpose of carrying on the business of mining copper ores, and converting them into metal ingots suitable for commerce, more than three years before the bringing of these actions located their respective plants near Ducktown, and there severally erected furnaces, hearths, and fireplaces for roasting, reducing, and converting ores into commercial copper, and were respectively carrying on said business extensively in proximity to each other, and that in their said business, they unlawfully caused, created, and maintained a great nuisance at and around Ducktown, by sending out from their respective hearths, roast piles, and furnaces, into the pure air, immense volumes of noxious, foul, and poisonous smoke and gases, which, ascending from their several and respective works into the atmosphere, therein became and were indistinguishably mingled, commingled, and intermingled into clouds of noxious, deadly, and poisonous vapor, which permeated the surrounding atmosphere, and steadily drifted over and on the premises of the plaintiffs, often covering the same for hours, poisoning the air, rendering difficult respiration, wrongfully and unlawfully burning, parching, and destroying plaintiffs' said gardens, orchards, crops, and timber, and impairing and expelling the convenience and comfort of their homes, whereby plaintiffs were injured and sustained damages, etc., for which they sue.

The declarations contain no averments of a common ownership or operation of the properties of the defendants, or any common design, purpose, concert, or joint action upon the part of the defendants in discharging the foul and poisonous fumes, gases, and smoke causing and maintaining the nuisance complained of; but, on the contrary, it clearly appears from them that the defendants are distinct corporations, owning separate plants, which they severally operate, without any connection, and independent of each other. The only averment tending to show joint action or common purpose is that the poisonous and noxious gases, fumes, and smoke which are discharged from the furnaces and roast heaps, after leaving the same and ascending into the air, there become commingled and indistinguishable, and then constitute a nuisance, which injures and destroys the property of the plaintiffs. These injuries are not averred to be the result of force directly applied, or concurrent negligence of the defendants in the operation of their several respective plants, but the consequential effect of their said unlawful conduct.

The questions which this court is called upon to determine in these cases are not merely of pleading, but also of liability, or when one tort feasor is liable for damages done by others to the same party, for the test of joint liability is whether each of the parties is liable for the entire injury done. If they are joint tort feasors, each one is responsible for the damages resulting from the acts of all the wrongdoers, and they may all be sued severally or jointly; but, if they are not joint tort feasors, each is liable only for the injury contributed by him, and can only be sued in a separate action therefor. These are most important questions, often far-reaching in their consequences, and deserve the most careful consideration.

The defendants, by their demurrers, do not, and could not successfully, deny that the averments of the declarations, if true, show an actionable nuisance, for which they are severally liable to the extent which they respectively contributed to its creation and maintenance.

This was so held in the case of Ducktown Sulphur & Iron Co., Limited, v. Barnes and others--a bill brought to enjoin the prosecution of certain suits instituted against the complainant in that cause to recover damages to the property of plaintiffs therein caused by it in the operation of its plant at Ducktown in the same way complained of in these cases.

In the able opinion of the Court of Chancery Appeals in that case, delivered by Judge Wilson, and adopted by this court, it is said:

"Assuming that complainant is engaged in a lawful business, and that it conducts it lawfully and prudently, and according to the latest and best-known methods established for the operation of such business, is it liable in damages for an injury to the property rights of another living in the vicinity, caused by the operation of its business? The principle is well settled that when a trade or business is carried on in such manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which causes material injury to the property itself, it amounts to a wrong to the neighboring owner, for which an action will lie; and it is no defense to such an action to prove that the place where the business is carried on at is a suitable locality, or that the business is lawful and one useful to the public, or that the best and most approved appliances and methods are used in the conduct and management of the business." Ducktown Sulphur & Iron Co. v. Barnes et al., 60 S.W. 600.

What they do controvert is the contention of plaintiffs that they are joint tort feasors, and jointly and severally liable for all the damages caused by both of the plants in question, and can be sued jointly therefor, and these are the points now before us for decision.

When a tort is committed by two or more persons jointly, by force directly applied, or in the pursuit of a common purpose or design, or by concert, or in the advancement of a common interest, or as the result and effect of joint concurrent negligence, there is no doubt but that all the tort feasors are jointly and severally liable for all the damages done the injured party, and that these damages may be recovered in joint or several actions, although the wrongful conduct or negligence of some may have contributed less than that of others to the injury done.

Torts may also be joint on account of the relations of the parties, such as the joint liability of a husband and wife for the wife's torts, that of the master and servant for the latter's torts, and that of the principal and agent, employer and employé, partner and copartner, for the acts of the agent, employé, and copartner, when committed within the scope of the agency, employment, or partnership. Snyder v. Witt, 99 Tenn. 619, 42 S.W. 441; Railroad v. Jones, 100 Tenn. 511, 45 S.W. 681; Electric Railway Co. v. Shelton, 89 Tenn. 425, 14 S.W. 863, 24 Am. St. Rep. 614; 1 Jaggard on Torts, § 67; Cooley on Torts, p. 133.

The parties in all these cases are joint tort feasors. The reason for holding them liable for all the damages inflicted by any of them is that they are all present, in person or by representation, and join in the wrongful act, or in some way knowingly aid in doing it, thereby consenting to and approving the entire wrong and injury done. The whole injury is committed by each and all of the trespassers, and it is but just and right that each of them should be held responsible for all the damages inflicted; and, the liability being several and joint, they may be sued separately or jointly. But this is not the rule where the tort feasors act independently of each other, without community of interest or concert of action, or common design or purpose, or concurrent acts of negligence, or where the injury is not the result of force directly applied, but the consequential effects of the wrongful conduct or negligence constituting a nuisance.

Where the tort feasors have no unity of interest, common design, or purpose or concert of action, there is no intent that the combined acts of all shall culminate in the injury resulting therefrom, and it is just that...