Certiorari to review the opinions and judgment of the Kansas City Court of Appeals in Woolston v. Blythe et al., 251 S.W. 145, an action to recover damages alleged to have been sustained by the plaintiff, A.B. Woolston, by the diversion of the waters of Sugar Creek upon plaintiff's farm, in consequence of which he lost the use thereof for the years 1908, 1909 and 1910.
A brief statement will suffice. The suit was instituted August 17, 1911. It is asserted by the relators, but denied by the plaintiff, that B.F. Moore was joined as a co-defendant in the petition and that later the action was dismissed as to him. The opinion is obscure on this point; the original petition is not in the abstract. The plaintiff died before the trial, and the cause was revived in the name of George A. Woolston as administrator of his estate. The administrator filed a second amended petition February 12, 1918, on which plaintiff, by the
verdict, recovered judgment for actual and punitive damages, which was affirmed on appeal.
Plaintiff built a levee on the east side of his farm in the year 1907 to protect it from the overflow of the waters of Sugar Creek. In the fall of that year a freshet caused a break in this levee. In April, 1908, plaintiff undertook to repair this break, but before he had proceeded far with the work B.F. Moore sued out a temporary injunction restraining him from repairing it. Moore filed the usual injunction bond, with four of the relators as sureties thereon. On the day after this writ was served, the relators, with their employees, cut a swath thirty or forty feet wide through the willows on a twenty-five-acre tract lying east of plaintiff's farm, removed a section of plaintiff's fence at the west end of the swath, and cut down the west bank of the creek at the east end thereof, so that when the floods came and the rains descended, plaintiff's farm was flooded, and he lost the use thereof for the years 1908, 1909 and 1910. The injunction was dissolved in the year 1910, when plaintiff at once repaired his levee. Plaintiff's damages on the injunction bond were assessed at $1600 and same were paid. These did not include damages for loss of the use of the farm. This suit was thereafter instituted on August 17, 1911.
The second amended petition, alleging that George A. Woolston was the legally appointed, qualified and acting administrator of the estate of A.B. Woolston, deceased, was filed on February 12, 1918, the day of the trial. The opinion recites this allegation was denied in the answer filed on the same day. It also states that at the close of plaintiff's case, the defendant "suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A.B. Woolston, deceased," and moved the court to abate the action, which motion was overruled. The defendant offered, and was refused leave, to file an amended answer setting up those facts.
The court instructed the jury "that they should disregard all evidence of the judgment assessing damages upon the injunction bond in the Moore Case; that said judgment constituted no defense in this case." At the close of paragraph 20 of the learned opinion, the court said:
"The witness Barnes, as shown in respondent's additional abstract of the record, testified that there was no water running through the swath at the time the willows were cut and being placed. No damages to the land or crops were asked or assessed upon the bond. However, Woolston was not permitted to repair his levee during the pendency of the injunction suit, and no doubt he could have recovered in that suit for damages, if any, resulting to him by reason of such prevention, but he could not recover any damages against the defendants in the case at bar for the reason that they were not parties to the suit, and, as before stated, this cause of action is for damages caused by their acts alone. The petition asked only for those damages, and the jury in plaintiff's instructions were confined to such damages as were suffered by plaintiff's intestate, caused by the affirmative acts of the defendants pleaded in the petition. We think, then, that this suit was maintainable against the present defendants in the case, and that the action of the court was proper. It makes no difference if Moore was originally made a party to this suit; it did not go to the jury against him, so we need not go into that. The judgment in the injunction suit is not res adjudicata."
[251 S.W. l.c. 154.]
In the learned opinion, at page 149, it is also said:
"At the close of plaintiff's case, defendant suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A.B. Woolston. Defendants then moved the court to abate the action because George A. Woolston was not then such administrator. The motion to abate was overruled by the court, whereupon
defendants asked leave to amend their answer by setting up said facts. The court first ruled that the answer could be so amended, and that the plaintiff might move to strike out the amendment, and this was done."
I. It appears from the learned opinion that at the close of plaintiff's evidence in chief, the defendants suggested and "proved" that on April 4, 1917, the administrator had filed his final settlement and was discharged and movedRevivor in Name the court to abate the action because George A.of Discharged Woolston was not then such administrator. AfterAdministrator. arguments of counsel, the court refused leave to file the amended answer averring the final settlement and discharge of the administrator on April 4, 1917, in conformity with the proofs already admitted in evidence. The learned Court of Appeals justifies this refusal under Sections 1346, 1347 and 1351, Revised Statutes 1919, which deal with the revival of actions in case of the death, marriage or disability of a party to an action. Obviously, these sections of the statutes have no application or relevancy to the case in hand.
The death of A.B. Woolston was suggested and the cause was revived in the name of George A. Woolston as administrator of the deceased, and the second amended petition was filed on February 12, 1918, averring that he was then the legally appointed, qualified and acting administrator of said deceased, nearly a year after he had been discharged. There was then no such pretended administrator or administration in existence. George A. Woolston was no longer the personal representative of the deceased A.B. Woolston and had no authority to represent his estate or to act therefor. The administration had been closed; he was functus officio. The order of revival was without warrant and unauthorized by the statute. [Prior v. Kiso, 96 Mo. 303, 314.] "The administrator (Banter) had been discharged, therefore could no longer act." [Grayson v. Weddle, 63 Mo. 539; See also Wright v. Hetherlin, 277 Mo. 99.]
In the circumstances of this case there can be no merit in the contention that the granting leave to file the amended answer conforming to the proof already adduced would work a surprise to the plaintiff, who was masquerading as administrator, and that its filing was discretionary with the court. The original answer denied his representative capacity. We think the learned opinion is clearly in conflict with the decisions of this court cited supra.
II.
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Certiorari to review the opinions and judgment of the Kansas City Court of Appeals in Woolston v. Blythe et al., 251 S.W. 145, an action to recover damages alleged to have been sustained by the plaintiff, A.B. Woolston, by the diversion of the waters of Sugar Creek upon plaintiff's farm, in consequence of which he lost the use thereof for the years 1908, 1909 and 1910.
A brief statement will suffice. The suit was instituted August 17, 1911. It is asserted by the relators, but denied by the plaintiff, that B.F. Moore was joined as a co-defendant in the petition and that later the action was dismissed as to him. The opinion is obscure on this point; the original petition is not in the abstract. The plaintiff died before the trial, and the cause was revived in the name of George A. Woolston as administrator of his estate. The administrator filed a second amended petition February 12, 1918, on which plaintiff, by the
verdict, recovered judgment for actual and punitive damages, which was affirmed on appeal.
Plaintiff built a levee on the east side of his farm in the year 1907 to protect it from the overflow of the waters of Sugar Creek. In the fall of that year a freshet caused a break in this levee. In April, 1908, plaintiff undertook to repair this break, but before he had proceeded far with the work B.F. Moore sued out a temporary injunction restraining him from repairing it. Moore filed the usual injunction bond, with four of the relators as sureties thereon. On the day after this writ was served, the relators, with their employees, cut a swath thirty or forty feet wide through the willows on a twenty-five-acre tract lying east of plaintiff's farm, removed a section of plaintiff's fence at the west end of the swath, and cut down the west bank of the creek at the east end thereof, so that when the floods came and the rains descended, plaintiff's farm was flooded, and he lost the use thereof for the years 1908, 1909 and 1910. The injunction was dissolved in the year 1910, when plaintiff at once repaired his levee. Plaintiff's damages on the injunction bond were assessed at $1600 and same were paid. These did not include damages for loss of the use of the farm. This suit was thereafter instituted on August 17, 1911.
The second amended petition, alleging that George A. Woolston was the legally appointed, qualified and acting administrator of the estate of A.B. Woolston, deceased, was filed on February 12, 1918, the day of the trial. The opinion recites this allegation was denied in the answer filed on the same day. It also states that at the close of plaintiff's case, the defendant "suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A.B. Woolston, deceased," and moved the court to abate the action, which motion was overruled. The defendant offered, and was refused leave, to file an amended answer setting up those facts.
The court instructed the jury "that they should disregard all evidence of the judgment assessing damages upon the injunction bond in the Moore Case; that said judgment constituted no defense in this case." At the close of paragraph 20 of the learned opinion, the court said:
"The witness Barnes, as shown in respondent's additional abstract of the record, testified that there was no water running through the swath at the time the willows were cut and being placed. No damages to the land or crops were asked or assessed upon the bond. However, Woolston was not permitted to repair his levee during the pendency of the injunction suit, and no doubt he could have recovered in that suit for damages, if any, resulting to him by reason of such prevention, but he could not recover any damages against the defendants in the case at bar for the reason that they were not parties to the suit, and, as before stated, this cause of action is for damages caused by their acts alone. The petition asked only for those damages, and the jury in plaintiff's instructions were confined to such damages as were suffered by plaintiff's intestate, caused by the affirmative acts of the defendants pleaded in the petition. We think, then, that this suit was maintainable against the present defendants in the case, and that the action of the court was proper. It makes no difference if Moore was originally made a party to this suit; it did not go to the jury against him, so we need not go into that. The judgment in the injunction suit is not res adjudicata."
[251 S.W. l.c. 154.]
In the learned opinion, at page 149, it is also said:
"At the close of plaintiff's case, defendant suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A.B. Woolston. Defendants then moved the court to abate the action because George A. Woolston was not then such administrator. The motion to abate was overruled by the court, whereupon
defendants asked leave to amend their answer by setting up said facts. The court first ruled that the answer could be so amended, and that the plaintiff might move to strike out the amendment, and this was done."
I. It appears from the learned opinion that at the close of plaintiff's evidence in chief, the defendants suggested and "proved" that on April 4, 1917, the administrator had filed his final settlement and was discharged and movedRevivor in Name the court to abate the action because George A.of Discharged Woolston was not then such administrator. AfterAdministrator. arguments of counsel, the court refused leave to file the amended answer averring the final settlement and discharge of the administrator on April 4, 1917, in conformity with the proofs already admitted in evidence. The learned Court of Appeals justifies this refusal under Sections 1346, 1347 and 1351, Revised Statutes 1919, which deal with the revival of actions in case of the death, marriage or disability of a party to an action. Obviously, these sections of the statutes have no application or relevancy to the case in hand.
The death of A.B. Woolston was suggested and the cause was revived in the name of George A. Woolston as administrator of the deceased, and the second amended petition was filed on February 12, 1918, averring that he was then the legally appointed, qualified and acting administrator of said deceased, nearly a year after he had been discharged. There was then no such pretended administrator or administration in existence. George A. Woolston was no longer the personal representative of the deceased A.B. Woolston and had no authority to represent his estate or to act therefor. The administration had been closed; he was functus officio. The order of revival was without warrant and unauthorized by the statute. [Prior v. Kiso, 96 Mo. 303, 314.] "The administrator (Banter) had been discharged, therefore could no longer act." [Grayson v. Weddle, 63 Mo. 539; See also Wright v. Hetherlin, 277 Mo. 99.]
In the circumstances of this case there can be no merit in the contention that the granting leave to file the amended answer conforming to the proof already adduced would work a surprise to the plaintiff, who was masquerading as administrator, and that its filing was discretionary with the court. The original answer denied his representative capacity. We think the learned opinion is clearly in conflict with the decisions of this court cited supra.
II. The opinion approves an instruction given the jury that "they should disregard all evidence of the judgment assessing damages upon the injunction bond in the Moore Case;Concurrent that said judgment constituted no defense in thisDamages. case." [Par. 20.] The damages on the bond were assessed and paid before this suit was instituted.
A.B. Woolston's land was protected from overflow water from Sugar Creek by a levee on the east line of his farm. A freshet in 1907 had caused a washout in this levee. The Moore injunction restrained him from repairing this gap. As stated in the opinion, this injunction did not permit him to repair this break in the gap during its pendency. On its dissolution in 1910, he immediately repaired the gap. The injunction tied his hands and was the proximate cause of the loss of the use of his farm during the years 1908, 1909 and 1910. It is not contended that the levee, if repaired, would not have averted the water from his farm. The injunction bond referred to in the opinion is in the form required by the statute (Sec. 1957, R.S. 1919); it is in the sum of $2000, and is conditioned that the obligors shall pay all sums of money, damages and costs that shall be adjudged against them if the said injunction shall be dissolved.
The general rule is that the damages to be assessed on the bond on the dissolution of the injunction "are such and such only as are actual and the proximate result of the restraining order." [Holloway v. Holloway, 103 Mo. 284; Meysenburg v. Schlieper,48 Mo. 431; Albers
Comm. Co. v. Spencer, 236 Mo. 630; Kennedy's Administratrix v. Hammond, 16 Mo. 341.] The obligors were clearly liable for all damages directly occasioned by the injunction which expressly restrained Woolston from closing the break in the levee. The direct and inevitable result of this was that the water continued to flood his farm and he lost the use of it during the years mentioned. This loss was caused by the injunction and was clearly an element that might have been considered in the assessment of damages on the bond. This is conceded in the opinion.
III. It is argued, however, that the damages suffered by the loss of the use of the farm were caused by the acts of the defendants in turning the water onto the Woolston farm. The most that can be claimed in this respect is that what theySplitting did was a contributing cause. If Woolston had beenCause of permitted to repair his levee the water could not haveAction. reached his land and the acts of the defendants would not have harmed him. But, conceding that the defendants acted independently of Moore, whether concurrently or subsequently, their acts contributed to the damages Woolston sustained in consequence of the injunction which restrained him from repairing his levee. In either case Moore was liable on his bond for all the damages caused by the waters flowing onto the farm through the broken levee. [Bragg v. Met. St. Ry. Co.,192 Mo. 359; Newcomb v. Railway Co., 169 Mo. 422.]
In Neff v. City of Cameron, 213 Mo. l.c. 360, it is said:
"It is elementary in the common law that the one who has suffered wrong may have his amends, indemnity or reparation from any one participating in that wrong. [Bragg v. Railroad, 192 Mo. l.c. 359 et seq.] Thus, if A and B wrong C, C may recover his damages from either A or B or from both. As put by Bishop (Bishop on Non-Contract Law, sec. 573), `A person who has done any part of a wrong working harm to another,
or even contributed his will to it, is responsible to him in damages for the entire harm, however many other individuals, forces and things may have co-operated in bringing about the mischief.'"
We quote also from Brash v. City of St. Louis, 161 Mo. 433, 437:
"The general doctrine on the question in issue on the instructions is thus stated in 1 Shearman Redfield on Negligence (5 Ed.) sec. 39; `It is universally agreed that if the damage is caused by the concurring force of the defendant's negligence and some other force for which he is not responsible, including "the act of God," or superhuman force intervening, defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that if the negligence of the defendant concurs with the other cause of the injury in point of time and place, or otherwise so directly contributes to the plaintiff's damage, that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated the interference of the superior force, which concurring with his own negligence produced the damage. But if the superior force would have produced the same damage whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury.'"
Moore being concededly liable on his bond for all the damages occasioned by the injunction, upon its dissolution Woolston was entitled to have all such damages assessed. He was not allowed to split his cause of action. By this recovery of a part of his damages his entire cause of action was merged in the judgment. [Wheeler Savings Bank v. Tracey, 141 Mo. 258, and cases cited.]
IV. Woolston might have sued all the wrongdoers contributing to his injury, either separately or jointly,
and prosecuted his action or actions toOne Satisfaction. judgment, "but for one trespass or wrong he can have but one satisfaction." [Page v. Freeman, 19 Mo. 422.] "A sufficient atonement having been made for the trespass, the whole matter is at an end. It is as though the wrong had never been done." [Dulaney v. Buffum, 173 Mo. l.c. 16, 17.] A release of one of several joint tortfeasors operates as a discharge of the others. [Hubbard v. Railway Co.,173 Mo. 255, cited in Judd v. Walker, 158 Mo. App. 165.]
V. Aside from the foregoing considerations, there was ample evidence, as shown by the learned opinion, to warrant a finding by the jury that in suing out the writ of injunctionConcert of Moore and the relators were acting in concert. FourAction. of the relators are sureties on the injunction bond. On the day after the service of the writ, pursuant to previous arrangement, the relators appeared upon the twenty-five-acre tract and, under the protection of the injunction, cut the swath through the willows and later did the other acts complained of. At least a jury might have so found. The giving of the instruction referred to in paragraph 2 was prejudicial error.
We think the opinion of the learned Court of Appeals is contrary to the last previous rulings of this court and its judgment is accordingly quashed. Railey, C., concurs.