Bates v. City of Houston

• Court: Texas Court of Appeals
• Writing for the Court: Cody
• Citation: Bates v. City of Houston, 189 S.W.2d 17 (Tex. App. 1945)
• Decision Date: 19 July 1945
• Docket Number: No. 11720.,11720.
• Parties: BATES v. CITY OF HOUSTON.

189 S.W.2d 17

BATES v. CITY OF HOUSTON.

No. 11720.

Court of Civil Appeals of Texas. Galveston.

July 19, 1945.

Rehearing Denied August 1, 1945.

Appeal from District Court, Harris County; W. W. Moore, Judge.

Action by Ernest Bates against the City of Houston to recover damages for destruction of improvements on plaintiff's lot by fire as the result of burning waste matter being blown from a garbage incinerator on defendant's lot. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Mandell & Wright, of Houston, for appellant.

Lewis W. Cutrer, City Atty., and George W. Eddy, 1st Asst. City Atty., both of Houston, for appellee.

CODY, Justice.

The court below sustained certain special exceptions to plaintiff's petition, and, when he declined further to amend, ordered his petition dismissed; from such action plaintiff has appealed.

The substance of plaintiff's allegations were:

That he is the owner of certain specified premises within the City of Houston, upon which there were certain improvements, which were located across the street from, and immediately south of a lot owned by defendant City, and on which defendant operated a municipal dump and incinerator and where it disposed of garbage, which had been collected for the purpose, by burning it.

That, if there were a wind blowing from the north, the incinerator was so operated that burning papers and other waste material would be blown upon plaintiff's lot, creating a dangerous condition. That on numerous occasions plaintiff and his wife had been compelled to extinguish burning material, which had been blown from the city's incinerator, to prevent the improvements on plaintiff's lot from being burned.

That on February 13, 1943, a strong wind was blowing from the north, and defendant city, acting through its employees, operated a large fire in its incinerator, and many times during said day plaintiff and his wife had been compelled to extinguish burning trash, which was blown from the incinerator upon their property, to prevent the improvements, consisting of their home, etc., from being burned. But in the afternoon the burning waste matter blown from the incinerator ignited the improvements on plaintiff's lot, and burned down his home and the other improvements thereon situated, together with the household furniture and automobile.

That the damages resulting to plaintiff were proximately caused by the negligence of defendant, its officers and employees, in various specified particulars, including that of maintaining the fire in the incinerator so as to constitute a nuisance endangering the property of plaintiff and others living in the vicinity.

That the conditions, facts and circumstances as to the operation of the incinerator were known to defendant, its officers, agents, etc.

The plaintiff alleged also that the damage to and destruction of his property was in violation of Article I, Section 17, of the State Constitution.

Defendant urged, among others, these two special exceptions:

"I. Defendant specially excepts to plaintiff's petition for the reason that it has failed to plead that the plaintiff has complied with the provisions of Article IX, Section 11, of the Charter of the City of Houston, which provides as follows:

"`Sec. 11. Notice of Claim against city for damages:—Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of property injured or destroyed, or some one in his behalf, shall give the mayor and city council notice in writing of such injury or destruction, duly verified, within 90 days after the same has been sustained, stating in such written notice when, where and how the injury or destruction occurred, and the apparent extent thereof, the amount of damage sustained, the amount for which claimant will settle, the actual residence of the claimant by street and number at the date the claim is presented, and the actual residence of such claimant for six months immediately preceding the occurrence of such injuries or destruction, and the names and addresses of the witnesses upon whom he relies to establish his claim, and a failure to so notify the mayor and city council within the time and manner specified herein shall exonerate, excuse and exempt the city from any liability whatsoever, provided that nothing herein shall be construed to affect or repeal Section 12 of Article IX of this Charter. (As amended, 1913)'

"In order that plaintiff may assert any cause of action for injuries to property, it is necessary that the petition set forth the facts concerning the filing of the proper notice as aforesaid.

"Of which special exception, defendant prays judgment of the Court.

"II. Without waiving the foregoing exception, but insisting upon the same, the defendant further excepts to plaintiff's petition because said petition shows upon its face that this defendant is a municipal corporation and that acts complained of, if any, which are not admitted but expressly denied, were done in the discharge of a governmental function which absolves defendant from any liability. Defendant shows the Court that it is compelled under its Charter and under the State Laws, to collect and dispose of trash, garbage and other waste material in the interest of public health, and it must do so free of charge to the general public, and in doing so, it is exercising a governmental function."

The court sustained said two special exceptions. Other special exceptions were also sustained, but they related only to form and are not here important.

Opinion.

It is well settled that Section 11, Article IX, of the Charter of the City of Houston, requiring the notice of a claim against the city for damages as a condition precedent to a right of action thereon, is valid; and furthermore, that such notice was given must be affirmatively alleged in a suit on such claim. Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701; City of Dallas v. Shows, Tex. Com.App., 212 S.W. 633. Such charter provision, however, does not apply to a suit on a claim against the city for the taking, damaging, or destroying private property for public use. Section 17, Article I, (Bill of Rights), Texas Constitution Vernon's Ann.St.; City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d 577.

Plaintiff has attempted to plead his cause of action so that the aforesaid charter provision will not apply to it. He has alleged as a legal conclusion that the destruction of his home was a damaging or destruction of it by the city for public use within the meaning of Section 17, Article I, of the Constitution. There is a very respectable line of authorities which holds that damage to property resulting from a nuisance caused by the negligent operation of a city dump or garbage disposal plant is a taking, damaging or destruction within the meaning of the constitution. (Such provision is in the constitutions of most of the states.) City of Louisville v. Hehemann, 161 Ky. 523, 171 S.W. 165, L.R.A.1915C, 747; Jacobs v. City of Seattle, 93 Wash. 171, 160 P. 299, L.R.A.1917B, 329. The courts so holding, also hold that the collection and disposition of garbage is a governmental function; so...