Ayala v. City of Corpus Christi
| Decision Date | 21 March 1974 |
| Docket Number | No. 812,812 |
| Citation | 507 S.W.2d 324 |
| Parties | Henry AYALA, d/b/a Custom Ambulance Service, Appellant, v. CITY OF CORPUS CHRISTI, Appellee. |
| Court | Texas Court of Appeals |
Pedro P. Garcia, Corpus Christi, for appellant.
James R. Riggs, City Atty., James F. McKibben, Jr., Corpus Christi, for appellee.
This is a suit brought by Henry Ayala individually and doing business as Custom Ambulance Service to enjoin the City of Corpus Christi from purchasing and operating ambulances in the use of a public ambulance system. The suit was brought under the authority of Article IX, Sec. 18 of the City Charter which allows any citizen who is a property taxpayer of the City to maintain an action to restrain the execution of any illegal or unauthorized or fraudulent agreement or contract on the part of the City. At the conclusion of all the evidence the trial court held for the City of Corpus Christi and denied plaintiff's application for permanent injunction.
The plaintiff has operated a privately owned ambulance service in the City since 1964. From the beginning of its operation through 1972 the Plaintiff had a contractual arrangement with the City by which the plaintiff would respond to emergency calls from the police department. Plaintiff was paid $5.00 by the City for each of these calls he responded to. Additionally, the plaintiff billed the individual who benefited from the service $25.00. The plaintiff responded to 2,530 of such emergency calls in 1972. In addition to the calls initiated by the police department, the plaintiff received calls for ambulance service from private individuals in the community. The plaintiff billed the individuals requiring the service at the same rate as those calls initiated by the police. The plaintiff made 850 such private calls in 1972.
In the latter part of 1972 the City Council for the City of Corpus Christi passed an ordinance allocating funds from the Federal Revenue Sharing Program for the purchase of 6 ambulances. Bids were invited for this purpose. A contract was proposed in which the City of Corpus Christi and the Nueces County Hospital District would organize and operate this new ambulance service as a joint operation.
The plaintiff attacks the proposed public ambulance service on the grounds that the City Charter in Article IX, Sec. 15 requires a majority vote of the property taxpayers of the City in a special election to approve the purchase, construction or operation of '. . . a system or systems of water works, gas or electric lighting plants, telephones, streetcars and sewers, or any other public utility service or enterprise'. The plaintiff claims that since no election was ever held, the City is operating a public utility service illegally, and as a result he will suffer irreparable damage therefrom.
The appellant attacks the ruling of the trial court in denying his application for injunctive relief on two grounds which form his points of error. They are:
'First Point
The trial court should have held that Henry Ayala, individually and d/b/a Custom Ambulance Service did suffer irreparable damage as a result of the institution by the City of Corpus Christi of a public emergency ambulance system.
The trial court should have held that the City of Corpus Christi, Texas was required by its charter and particularly by the provisions of Article IX, Sec. 15(a), to hold a special election to allow the voters entitled to participate therein to approve the institution of the proposed public emergency ambulance system, or the purchase of ambulance therefor.'
Before consideration is given to the points of error set forth by the plaintiff, it is interesting to note that the plaintiff did not claim a breach of contract by the City or an unjust determination of a franchise. The plaintiff does not challenge the power of the City to purchase an ambulance system. Instead, plaintiff attacks the method which the City used to make this purchase as being illegal and in violation of the City Charter which controls such purchases and/or operations.
Appellant's contention that he would suffer irreparable harm by losing the emergency calls that he is presently getting from the police department is without merit. Plaintiff failed to meet the burden of proof necessary to show irreparable harm. The evidence showed that the plaintiff had a very low collection rate from calls from the police department. He admitted that the business he lost from the police department was of an inferior quality. He stated that he had a net profit of $1,500.00 for 1972. It was his testimony that his total business included a wrecker service, a wrecked storage service, and a personal call ambulance service in addition to those service calls from the police department.
Even if the plaintiff had met his factual burden, it would not be irreparable harm to him if the City had a legal right to institute the ambulance service, irrespective. There is a difference from showing an injury or loss alone and showing that the loss is related to a legally enforceable right or breach of a legal duty. State v. Brewer, 141 Tex. 1, 169 S.W.2d 468 (1943). An action will not lie for an injury resulting from the mere exercise of a legal right, or from the commission of a lawful action in a proper manner. The doctrine of damnum absque injuria (damage without injury) applies, and the loss is not cognizable in the law. Brown v. American Freehold Land Mortgage Company, 97 Tex. 599, 80 S.W. 985 (1904). See 1 Tex.Jur. Actions § 18. Where a non exclusive right or franchise is granted by a City, such City may grant the same right to another, without impairing a contract obligation. This would apply to the City itself. In some cases, a City may also undertake to do that which the same right or franchise permits. See McQuillin, The Law of Municipal Corporations § 19.47 (3rd Ed. 1969). We hold that any loss that this appellant may have suffered because of the competition of this particular business in this City is not an injury which the law will attempt to prevent or remedy. Appellant's first...
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