Opinion
No. 35004
Decided May 29, 1957.
Negligence — Joint and several liability — Circumstances creating — Joinder of defendants — Joinder of causes of action — Actions based on nuisance and negligence.
1. Where two or more persons, under circumstances creating primary liability, either, by a combination of their actions, create a nuisance causing damage or, by their concurrent negligence, directly produce a single indivisible injury, and where it is impossible to measure or ascertain the amount of damage created by any one of the persons, such persons, as jointly and severally liable, may be joined as defendants in an action, based upon such conduct, by one who has been damaged thereby.
2. A cause of action for damages resulting from the creation of a nuisance and one based upon negligence may be joined, where they both arise out of and are included in the same transaction or transactions connected with the same subject of action.
APPEAL from the Court of Appeals for Medina County.
Plaintiffs and appellees herein, Joseph Schindler and Thelma A. Schindler, hereinafter designated plaintiffs, instituted an action against The Standard Oil Company and four other oil companies, together with various persons who had operated filling stations for such oil companies, each of which other persons is alleged to have been engaged in a joint venture or enterprise with the company whose oil station such person was operating during various stated periods of time. All such companies and persons are hereinafter designated defendants.
According to their amended petition, plaintiffs are the owners of real estate which is situated near the circular green in the village of Litchfield. The five oil companies, together with the other defendants, were engaged in operating separate gasoline stations located at various points around the circular green, and these several joint venture or enterprise groups each operated a single gasoline station during certain periods of time.
The amended petition states two causes of action. The first is based upon a nuisance theory in that each of the groups of defendants was at fault during the periods the gasoline station was being operated by it and in that there was a failure to confine the gasoline stored thereon to its premises, and the second is based upon negligence for failure to exercise ordinary care in inspecting and maintaining tanks and equipment, with the result that gasoline was permitted to escape from each of such stations, that the gasoline so escaping from all such stations, during various periods from 1931 to 1948, percolated through the earth, and that on or about October 25, 1948, such gasoline percolated to and into the land of plaintiffs, contaminating the wells thereon and rendering the water in such wells unfit for drinking, domestic, or business use, to the damage of plaintiffs in the sum of $32,000.
Various ones of the numerous defendants demurred to the amended petition for, among other grounds, misjoinder of separate causes of action against separate defendants, misjoinder of parties defendant, and misjoinder of causes of action.
The Common Pleas Court sustained the demurrers, and upon appeal to the Court of Appeals that judgment was reversed.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. J.B. Palmquist and Mr. Ralph Burroughs, for appellees.
Messrs. McAfee, Grossman, Taplin, Hanning, Newcomer Hazlett, Mr. H. Vincent E. Mitchell, Mr. John A. Weber and Mr. Harold L. Williams, for appellants.
The question of law presented to us is a simple one. As stated by defendants, it is, "Upon the facts alleged in the amended petition have the plaintiffs-appellees a joint and several right of action against the defendant-appellants?"
The defendants rely strongly upon the case of City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631, 118 Am. St. Rep., 852, 10 L.R.A. (N.S.), 806, the three paragraphs of the syllabus of which read as follows:
"1. Where a drain laid by property owners in a public street, under permission from the city, empties into a natural stream, and thereafter, without express license from the city, is used as a sewer to discharge sewage into the stream to the injury of a lower riparian owner, the drain is a nuisance, and the city is liable for negligence in not abating it.
"2. Where different parties discharge sewage and filth into a stream, which intermingle and cause an actionable nuisance, they are not jointly liable for damages when there is no common design or concert of action, but each is liable only for his proportion of the damages.
"3. The power given to a municipality to prevent injury or annoyance from anything offensive or unwholesome, and to cause any nuisance to be abated, is governmental, and the municipality is not liable for damages from a private nuisance resulting from its omission to exercise the power by the adoption of resolutions or ordinances, or for damages from such nuisance occasioned by a failure of its officers to enforce resolutions or ordinances adopted in the exercise of that power."
It is contended by defendants that the judgment of the Court of Appeals runs counter to the second paragraph of the syllabus of the Bristor case, and it apparently does. However, the Bristor case is entirely different from the present one. That case was an action brought against the city of Mansfield alone to recover damages caused by the pollution of a stream by the city. The city answered that, if the stream had been polluted to the extent that a nuisance was created, that pollution was caused by other riparian proprietors; and in a long opinion this court at least indicated that the amount of pollution by each contributor thereto could be calculated, and that a separate action would have to be maintained against each contributor.
The present action was instituted against all those who, at various times, either by their creation of a nuisance or as a result of negligence, both in combination and severally, caused gasoline to permeate the land of the plaintiffs and to pollute their wells.
It must be remembered that the present case concerns a decision on demurrers to the amended petition. This petition, so far as each oil station is concerned, charges that those who operated it did so in a joint venture or enterprise, and obviously such a charge indicates concerted action, and the charges as to the different stations indicate that it would be impossible to measure or ascertain the amount of damage or pollution created by any single defendant. If that should turn out to be the fact upon the trial of the case, and if plaintiffs could not have joined the various defendants in their action, a gross injustice would result to plaintiffs since they would have suffered, according to their amended petition, a great damage without compensation.
There was formerly a theory of law that there could be no joint recovery in tort against persons, in the absence of a common duty, common design, or concerted action by them in reference to the injury they caused. However, that theory, if it ever did obtain in Ohio, has long since been abandoned.
In Wery v. Seff, 136 Ohio St. 307, 25 N.E.2d 692, the fifth paragraph of the syllabus reads as follows:
"When two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action." See, also, Meyer v. Cincinnati Street Ry. Co., 157 Ohio St. 38, 104 N.E.2d 173, and Glass v. McCullough Transfer Co., 159 Ohio St. 505, 112 N.E.2d 823.
Defendants contend that the foregoing cases are in a different category from pollution cases, but it is difficult to see a distinction between them, except in cases where the amount and measure of pollution of each individual creator can be ascertained and measured.
In tort cases based on collisions, as were the foregoing three, it is impossible to measure the amount of damage occasioned by the negligence of a particular tort-feasor as distinguished from the amount occasioned by his concurrent tort-feasor, and, therefore, from the necessity of justice, a joinder must be permitted.
Since, as held in the McCullough case, supra, in determining the sufficiency of a petition on demurrer, its allegations must be liberally construed in favor of the plaintiff, and since an examination of the amended petition herein indicates that the various defendants as to each company's station were acting concurrently and it is impossible to determine the amount of damage caused by any company's station as distinguished from that caused by another, it is apparent that, as tested by demurrers, the amended petition is proper in its joinder of the various defendants named therein as well as its causes of action.
The statute governing joinder of causes of action which was in force at the time the action herein was instituted was Section 11306, General Code (Section 2309.05, Revised Code). This statute provides that the plaintiff may unite several causes of action in the same petition where they are included in the same transaction or in transactions connected with the same subject of action. This would seem to dispose of the question whether there was a proper joinder of causes of action in the present case.
The statute governing joinder of defendants, in force at the time of the institution of the present action, was Section 11255, General Code (Section 2307.19, Revised Code). This statute reads as follows:
"Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein."
Since the amended petition alleges that the negligence of "each and all" of the defendants caused a single indivisible injury to plaintiffs, and since it is a reasonable inference from the language of the amended petition that it is impossible to determine the amount of injury caused by the action of any single defendant, so far as the allegations of the amended petition are concerned, there was a proper joinder of causes of action and defendants.
As was well stated in the opinion of the Court of Appeals, "we are not here now interested in the question of proof to establish the claims, but in the legal question of joint and several liability, as set out by the claim in the [amended] petition."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.