did not increase his injury. If the dirt were deposited mountain high by the stream his dirt filled only its own space, and it was made neither more nor less by the accretions. True, it may be difficult to determine how much dirt came from each colliery, but the relative proportion thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury one man does him, he may therefore recover from that one all the injury that others do.
"This is bad logic and hard law. Without concert of action no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for if the defendants can be held liable for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we should find them jointly sued, then the want of concert and the several liability of each would be apparent. These principles are fully sustained by the following cases: Russell v. Tomlinson et al., 2 Conn. 206; Adams v. Hall, 2 Vt. 9 [19 Am.Dec. 690]; Van Steenburgh v. Tobias, 17 Wend. [N.Y.] 562 [31 Am.Dec. 310]; Buddington v. Shearer, 20 Pick. [Mass.] 477; Auchmuty v. Ham, 1 Denio [N.Y.] 495; Partenheimer v. Van Order, 20 Barb. [N.Y.] 479."
In Gallagher v. Kemmerer, supra, the Supreme Court said at page 517 of 144 Pa., 22 A. at page 970, 27 Am.St.Rep. 673: "It is argued, on the part of the appellants, that the injury to which the plaintiff was subjected was of such a character that it could not, as between the parties who caused it, be divided, so as to determine in what proportion it was caused by each; and that, even if the defendants' mines had not been operated, the mining operations of the Highland Coal Company would have resulted in the same injury. It is true that the injury complained of may have been caused in part by the operations of the Highland Coal Company, conducted contemporaneously with the operations of the defendants' mines, and that it would be difficult, if not quite impossible, to separate and ascertain, definitely or certainly, the proportion of the whole damage done by each of these operations, respectively. But these several operations were entirely independent of each other. They were several miles apart, and the ownership, management, and control were wholly distinct and separate. There was no concert of action, or common purpose or design, which would support the theory of joint injury. The case, in this branch, it ruled by [Little Schuylkill] Navigation [Railroad and Coal] Co. v. Richards, 57 Pa. 142 [98 Am.Dec. 209]."
And in the Eckman case, supra, the Superior Court said at page 431 of 50 Pa.Super.: "A joint action cannot be maintained against several proprietors of coal operations acting independently, who thus cast culm into a stream, which is washed onto the land of another, but each is liable for the proportion of damages he caused, and that only."
Since, under the Pennsylvania law, the attempt of the plaintiff to allege a joint liability on the part of the plaintiff to this action must fail, the complaint does not allege facts necessary to show federal jurisdiction. It is settled that when two or more defendants severally liable to a plaintiff are joined in one action, the amounts of the claims may not be aggregated to establish the amount in controversy necessary to sustain jurisdiction of the federal courts. In Walter v. Northeastern R. Co., 147 U.S. 370, 13 S. Ct. 348, 37 L. Ed. 206, the Supreme Court held that it was error for the circuit court to take jurisdiction of an action by a single plaintiff to enjoin the authorities of various counties from enforcing an allegedly unconstitutional tax where the amount involved in each county was less than the jurisdictional requirement. Said the Court at page 373 of 147 U.S., 13 S. Ct. at page 349, 37 L. Ed. 206: "Is the plaintiff entitled to join them all in a single suit in a federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2,000? We think not. It is well settled in this court that when two or more plaintiffs, having several interests, unite, for the convenience of litigation, in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount, and that, when two or more defendants are sued by the same plaintiff in one suit, the test of jurisdiction is the joint or several character of the liability to the plaintiff. This was the distinct ruling of this court in Seaver v. Bigelows, 5 Wall. 208 [18 L. Ed. 595]; Russell v. Stansell, 105 U.S. 303 [26 L. Ed. 989]; Farmers' Loan & Trust Co. v. Waterman, 106 U.S. 265, 1 S. Ct. 131 [27 L. Ed. 115]; Hawley v. Fairbanks, 108 U.S. 543, 2 S. Ct. 846 [27 L. Ed. 820]; Stewart v. Dunham, 115 U.S. 61, 5 S. Ct. 1163 [29 L. Ed. 329]; Gibson v. Shufeldt, 122 U.S. 27, 7 S. Ct.1066 [30 L. Ed. 1083]; Clay v. Field, 138 U.S. 464, 11 S. Ct. 419 [34 L. Ed. 1044]. * * * In short, the rule applicable to several plaintiffs having separate claims, that each must represent an amount sufficient to give the court jurisdiction, is equally applicable to several liabilities of different defendants to the same plaintiff."
The law on this question is well summarized in 1 Moore's Fed.Practice, 542, 543:
"Where two or more defendants are joined by the same plaintiff in one suit, the pecuniary test of jurisdiction is ordinarily founded on the joint or several character of their liability. If their liability is joint or common, the value of the matters in controversy between them and the plaintiff is the jurisdictional sum. * * *
"If liability is several, ordinarily, the suit can be sustained only as against those whose respective controversies severally involve matters exceeding the jurisdictional amount."
In Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001, the Supreme Court reiterated the same rule with respect to the converse situation in which several plaintiffs assert several claims against one defendant in a single action. Said the present Chief Justice at page 589 of 306 U.S., 59 S. Ct. at page 748, 83 L. Ed. 1001: "It is a familiar rule that when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional requirements. Wheless v. [City of] St. Louis, 180 U.S. 379, 21 S. Ct. 402, 45 L. Ed. 583; Rogers v. Hennepin County, 239 U.S. 621, 36 S. Ct. 217, 60 L. Ed. 469; Pinel v. Pinel, 240 U.S. 594, 36 S. Ct. 416, 60 L. Ed. 817; Scott v. Frazier, 253 U.S. 243, 40 S. Ct. 503, 64 L. Ed. 883."
The procedural right to join independent causes of action in a single suit in no way affects the independent character of the claims thus asserted. In commenting on this question the Supreme Court in Schwed v. Smith, 106 U.S. 188, at page 190, 1 S. Ct. 221, at page 222, 27 L. Ed. 156, said: "* * * although the proceeding is in form but one suit, its legal effect is the same as though separate suits had been begun on each of the separate causes of action."
Since, therefore, the action against these defendants is, under Pennsylvania law, several and not joint, and the complaint fails to show that the amount in controversy with respect to the claim against any single defendant exceeds the jurisdictional amount, it is insufficient to show that this court has jurisdiction of the cause. See Clark v. Paul Gray, Inc., supra, 306 U.S. at page 589, 59 S. Ct. at page 748, 83 L. Ed. 1001: "The general allegation in the bill of complaint that 'the amount involved in this litigation is in excess of' $3,000 and the finding of the court that 'the amount involved in the within action' exceeds the jurisdictional amount, give no indication that the amount in controversy with respect to the claim of any single plaintiff exceeds that jurisdictional amount and are insufficient to show that the district court had jurisdiction of the cause. Pinel v. Pinel, supra." Since there has been no sufficient showing of jurisdiction, it is unnecessary to consider the other grounds urged by the defendants in support of their motions to dismiss the complaint or of their alternative motions for a more definite complaint or a bill of particulars.
Defendants' motions to dismiss the complaint are granted.
© 1992-2004 VersusLaw Inc.