66 Fla. 220 | Fla. | 1913
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 ander 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 $10,000.60.
For that the plaintiff, on the 1st day of November, A. D. 1908, and from thence hitherto, has been and now is the owner in fee simple, and has been and now is lawfully possessed of the following described real estate, to-wit;
Southeast % of southwest %, and southwest % of southwest 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
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 phos: phate mining plant, and from thence hitherto has and
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'
A demurrer to the declaration was filed by the Standard Phosphate Company, as follows:
“1st. That the declaration shows upon its face that the defendants operate separate and distinct phosphate plants located in separate and distinct places and that they are not jointly liable for any damage that may be done either of them to the plaintiff as set up in the plaintiff’s declaration.
2nd. That under the statement of facts set up in plaintiff’s declaration, plaintiff cannot recover from either of these defendants the damage, if any, that may be done by the other, as the declaration does not set up that they jointly did the damage or any damage to the plaintiff, and that the plaintiff under his declaration is not entitled to recover from both any damage that may have been done by the other one or either of these defendants; therefore they should not be joined as defendants.”
The demurrer of the Phosphate Mining Company is as follows:
“1st. It appears therefrom that this defendant and the Standard Phosphate Company, its co-defendant, are and have been operating phosphate plants at different places independently of each other between which no connection is shown, and that the damage of which plaintiff complains was caused by the separate acts of said defendants
2nd. Said amended declaration does not allege such state of facts as entitles the plaintiff to recover from said defendants jointly any damage that may have been done to the plaintiff by reason of the premises.
3rd. A joint action against said defendants cannot be maintained upon the allegations in said amended declaration contained.”
On these demurrers the following ruling was made:
“This cause coming on to be tried this day the defendants desiring to interpose a demurrer, to which no objection is made, and thereupon said demurrer having been argued and the court being of opinion that the question involved does not properly arise on demurrer but the principle can.only be properly applied on the evidence; that to hold defendants jointly liable evidence must show a damage during a time when both were contributing thereto but it would be several if evidence showed damage at different times and the court will so confine and apply the principle at the trial. Demurrer overruled, and it appearing that a plea, has been filed, a jury is therefore called to try the issue.”
The defendants severally filed a plea of not guilty, and at the trial, the court, among other propositions, charged the jury as follows:
“You may find the defendants jointly guilty or one guilty and the other not guilty or both not guilty according as you may find from the evidence and instructions joint liability or not or none at all, but before you can find defendants jointly liable you must believe from the evidence that at some time since November 1st, 1908, they were .jointly and during the same period of time, committing the acts as charged in the declaration and
The following verdict was rendered: “We the jury find the defendants guilty and assess plaintiff’s damages at $2,000.00 two. thousand dollars.” Judgment was rendered that the plaintiff “do have and recover of and from the defendants the said Phosphate Mining Company and the Standard Phosphate Company, both corporations, the said sum of $2,000.00 damages,” &c. A writ of error was taken by the -two defendants.
Since the judgment herein was rendered this court has announced the following propositions of law:
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. Symmes v. Prairie Pebble Phosphate Co., -Fla.-, 63 South. Rep. 1.
When properly tested by demurrer or other appropriate
In view of the somewhat indefinite language of the declaration including the allegation that “both of the defendants did unlawfully and injuriously to the plaintiff --- * * discharge * * into said stream, near each of their mining plants, *now continuing to * * if discharge * * into said stre * * and are am * * * large quantities of * * dirty water, from each of the defendants’ 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,” and resulting in damage to the plaintiff’s land, the court will not be held in error in overruling the demurrers containing grounds to the effect that the declaration does not show a joint liability.
The charge of the court was applicable to the facts in evidence, but there is no evidence that the torts alleged against the defendants jointly were in any wise connected by the ligament of a common purpose, actual or implied by law. It is clear from the evidence that while the defendants discharged matter during the same period into the stream, it was done by each at its own plant at differ
These principles of law render incomplete the portion of the charge that “these defendants would only be liable jointly for such damages, if any, as resulted as a proximate result of such debris, as you may believe from the evidence was allowed to be cast on such land, if any, by both contributing thereto during the same period of time; that is both of the defendants are not jointly responsible for damage that may have resulted from the deposit of debris by one, either before the other commenced to contribute thereto, or after such other ceased to jointly contribute thereto.” The charge -given does not include the proposition that there should be between the defendants some concert of action or common purpose actual or implied by law, in order to make them liable in joint action at law as joint tort feasors.
The evidence does not show the defendants to be joint tort feasors, therefore the judgment against them jointly is reversed.