Millard v. Miller

Mr. Justice Goddabd delivered the opinion of the court: Whether the plaintiff is entitled to recover the full value of these respective pastures from the defendants in a proper action depends upon the construction to- be given to the terms of the lease which we think,-under the circumstances, remained in force between these parties for that year. That the plaintiff is not entitled to any relief in this action is -too plain to admit of controversy. The liability, if any, against these defendants is several, and must be [105] availed of, if at all, in separate actions. In appropriating the use of the respective pastures, they acted separately. There was no co-operation between them, or community in the wrong-doing alleged, and therefore under the well settled rule they cannot be sued jointly. At page 562, subdivision b, 15 Enc. PI. & Pr., the doctrine on this subject is concisely stated as follows: “Persons who act severally and independently, each causing a separate and distinct injury, cannot be sued jointly, even though the injuries may have been precisely similar in character and inflicted at the same time. A joint tort is essentia] to the maintenance of a joint action. For separate and distinct wrongs in no wise connected by the ligament of a common purpose, actual or implied by law, the wrong-doers' are liable only in separate actions, and not jointly in the same action.” Mr. Pomeroy, in his work on Code Remedies (4th ed.), at section 209, after stating the general rule to the effect that those who have united in the commission of a tort are liable to the injured party without any restriction upon his choice of defendants against whom he may proceed, says: “In order, however, that the general rule thus stated should apply, and a union of wrong-doers in one action should be possible, there must be some commtmity in the wrong-doing among the parties who are to be united as co-defendants; the injury must in some sense be their joint work. It is not enough that the injured party has on certain grounds a cause of action against one, for the physical tort done to himself or his property, and has, on entirely different grounds, a cause of action against another for the same physical tort; there must be something more than the existence of two separate causes of action for the same act or default, to enable him to [106] join the two parties liable in the single action. This principle is of universal application. ’ ’ We cannot agree with the view of the court below that section 13 of the code permits a recovery of several judgments against the defendants in this action. While the acts complained of may have been a violation of the plaintiff’s rights under the lease, and the invasion of such rights constitute his cause of action, the defendants are answerable only for their separate and individual acts that deprive plaintiff of what belongs to him by the terms of the lease, and are in no sense liable jointly or severally upon an “obligation or instrument” as contemplated in this section. For the foregoing reasons, the judgment is reversed and the cause remanded, with directions to dismiss the action. Reversed. Chief Justice Steele and Mr. Justice Batuev concur.