HANNAH BUTLER, Appellant and Respondent, v. THOMAS ASHWORTH et al., Appellants and Respondents, 110 Cal. 614

Van Fleet, J. Plaintiff brought an action against the city and county of San Francisco alone, to recover damages to her property caused by a broken sewer. The complaint was in two counts, the first upon the breaking of the sewer and the neglect to repair the same, and the second upon the negligent and improper manner in which the break was repaired—the proximate and efficient cause of damage assigned in each count being the inundation of plaintiff’s premises by the overflow from the broken and choked-up sewer; and the damages alleged in each count being identical as to time, manner, and extent.

In that action plaintiff recovered a judgment for eleven hundred and ninety dollars and her costs of suit.

Within two years after the bringing of that action, and before the satisfaction of the judgment therein, plaintiff brought the present action against the defendant Ashworth, as superintendent of streets of said city, and the other defendants as his deputies, wherein, in a single count exactly similar in all substantial respects to the second count in the first-named action, she sought damages accruing to her property through the breaking of said sewer, the immediate cause of damage assigned being the same overflow as that alleged in the previous action, and the damages alleged being as to time, manner of infliction, and in amount the same.

In this action plaintiff also recovered a judgment for the sum of eight hundred dollars damages, and three hundred and ninety-four dollars costs of action. Subsequent to the recovery of this last judgment, on the first day of August, 1893, the judgment in the said action against the city and county was fully paid, satisfied, and discharged.

Thereafter, the defendants in the present action moved the court below for an order restraining and enjoining the plaintiff therein from issuing or levying execution under the judgment therein, and that said judgment be ordered satisfied of record, upon the ground that plaintiff by the payment and satisfaction of the judgment in her said action against the city and county of San Francisco had been fully compensated for the identical injuries herein counted upon, and was entitled to no further relief in the premises; that both of said actions were brought for the same cause of action, and against several parties who might have been joined as defendants in one action, and who were all openly within the state at the time of the commencement- of the first-named action.

At the hearing of this motion the facts substantially as above recited were made to appear, and the court made an order granting the motion as to the eight hundred dollars damages recovered, but denied it as to the sum of three hundred and ninety-four dollars costs. Both parties excepted to the order of the court, and they both appeal—the plaintiff from so much of the order as deprives her of the eight hundred dollars damages, and the defendants from that part denying their right to satisfaction of the judgment as to the costs.

It is a just and well-established doctrine that there shall be but one satisfaction accorded for the same wrong. If one be injured by a tortious act, he is entitled to compensation for the injury suffered, and, if several persons are guilty in common of the tort, the injured one has his right of action for damages against each and all of the joint tort-feasors, and may at his election sue them individually or together. But when the injury arises from a single act, he cannot, by suing each wrongdoer alone, convert a joint into a several trespass, and thereby secure more than one compensation for the same injury.

If he sue one alone, and is paid damages for the wrong, his remedy is at an end, and he is barred from further recovery against the others. (1 Sutherland on Damages, 214; Stone v. Dickinson, 5 Allen, 29; 81 Am. Dec. 727; Urton v. Price, 57 Cal. 270; Tompkins v. Clay Street R. R.

Co., 66 Cal. 163.) But the plaintiff in support of her appeal claims that this wholesome rule has no application to this case, for the reason, as she contends, that the cause of action stated in her suit against the city and that stated against these defendants are not the same, and that the defendants in the two actions are in no sense joint tort-feasors. That the act relied upon as producing the injury in the action against the city was the delay in making repairs to the sewer, a mere omission, while these defendants are charged with

an act of commission, the making of repairs in such a negligent manner as to directly conduce to the injury complained of. While the second cause of action stated in the complaint against the city was the same as that relied upon in this case, it is claimed that the record shows that no issue was joined thereon^ and that it was solely upon the first count that plaintiff recovered in that action.

Assuming this last fact to be true, which the record, however, fails to show, it is nevertheless perfectly apparent that plaintiff’s contention is more specious than sound, and that there exists in fact no real difference between the causes of action stated in the two actions. Formal differences there may be, but in matters of substance there are none. In both actions the inducing, proximate cause of damage and injury alleged is the invasion of her premises by the overflowing sewage, caused by the broken and choked condition of the sewer.

That is the essential fact alleged alike in both counts of her action against the city, and in the complaint in this case. That is the fact constituting the gist of the action in both cases, and, as we have seen, it was one and the same overflow—in other words, the same fact which produced the alleged damage in both cases. The mere fact that the sewer broke produced no injury to plaintiff, nor did the fact that it was negligently repaired. It was in causing the sewage to overflow plaintiff’s premises, and that alone, which induced the injury and gave plaintiff her cause of action.

This was the fault of the city and the defendants, her officers, alike. Whether it was caused by their joint or several acts is immaterial. It would be subordinating substance to mere form to say that these two actions do not under the circumstances rest upon one and the same cause. This being so, and it appearing that plaintiff had been once compensated for the injury suffered, the court below was right in denying her a second award of damages for the same act. It does not result from this, however, that the plaintiff is not entitled to her costs in the present action.

While one may have a cause of action against two or more persons for the same act, it does not follow necessarily that, he can sue them jointly. “ There must be something more than the existence of two separate causes of action for the same act or default to enable him to join the two parties liable in the single action.” (Pomeroy’s Code Remedies, sec. 308.) The injury sufered must be in some sense the result of their joint work. Here, while the injury was from one common cause, it cannot, we think, be said to have been produced by the same fault or act óf the city and Ashworth.

The act of the former which conduced to the cause of injury was the neglect to repair the broken sewer; while the act of the latter was the negligent repair and stopping up thereof. These two acts produced the cause from which plaintiff suffered, but they were not joint in a sense which would make the city and Ashworth joint tortfeasors and liable to be sued in a common action. While plaintiff had a right of action therefor against each separately, she could not sue them jointly, and while she can have but one satisfaction in damages, the ease is not within

section 1023 of the Code of Civil Procedure, which prevents the recovery of costs in more than one action where the defendants, sued separately, “ might have been joined as defendants in the same action.” We think the order of the court below was right in both respects appealed from, and it follows that it should be affirmed, each appellant to pay his own costs on appeal. It is so ordered. Garoutte, J., and Harrison, J., concurred.