Elliott v. Ferguson , 101 Tex. 317 ( 1908 )

This action was brought by the defendants in error to enjoin plaintiffs in error from establishing a cemetery in the neighborhood in which the plaintiffs lived, in or near the city of Dallas. The ground upon which the relief was sought was that the health of the plaintiffs and of their families would be endangered by pollution of the air and water in their springs and wells. As to whether or not these effects would be produced by the burial of dead bodies as proposed by defendants much evidence tending to different conclusions was introduced.

The cause was submitted to the jury upon special issues which called for a finding upon the question whether or not the water passing underground through the cemetery would reach and pollute with disease germs any of the wells of any of the plaintiffs. The defendants requested the submission of an additional question, requiring a finding specifying the ones among the numerous plaintiffs whose wells would be thus affected. This was refused and no finding of this kind was required. While there was evidence tending to show that the water in all the wells might be rendered unwholesome, it was much weaker in respect to some than to others. The jury might properly have found in favor of some of the plaintiffs and against others if the requested instruction had been given. It seems very plain to us that the defendants were entitled to have the jury say which ones of the plaintiffs had sustained the cause of action alleged. The courts below seem to have proceeded upon the assumption that if any of the plaintiffs were entitled to an injunction it was immaterial whether all were so entitled or not. But it is not true that a defendant may be subjected to a judgment in favor of a plaintiff, who shows no right of action, merely because other plaintiffs show such a right. The charge requested required that which those given did not require, viz.: that each plaintiff make out his cause of action. As against those who had not succeeded in doing so, if there were any such, the defendants were entitled to a judgment denying the injunction and for costs incurred by such plaintiffs. The denial of this right can not be treated as immaterial. It is a right which belongs to every defendant to object to a judgment in favor of a plaintiff who has shown no right to sue him. The fact that A may show such probability of injury to himself as to entitle him to sue affords no ground for an action by B who shows no such injury. For the error in refusing the requested charge the judgment must be reversed.

We can not sustain the contention of plaintiffs in error that judgment should be rendered by this court in their favor on the ground that there is no evidence tending to sustain plaintiffs' action. There is evidence, upon which we shall make no comment, and this court has no power to determine the questions of fact which are involved.

Nothing further is presented in such way as to show error in the other rulings of the trial court referred to in the petition for writ of error.

Reversed and remanded.