City of Bryan v. Jenkins

• Decision Date: 03 April 1952
• Docket Number: No. 3012,3012
• Parties: CITY OF BRYAN v. JENKINS et al.
• Court: Texas Court of Appeals

Page 925

247 S.W.2d 925

CITY OF BRYAN v. JENKINS et al.

No. 3012.

Court of Civil Appeals of Texas, Waco.

April 3, 1952.

Rehearing Denied April 24, 1952.

W. T. McDonald, City Atty., Bryan, for appellant.

John M. Barron, W. C. Davis, and F. L. Henderson, all of Bryan, for appellees.

HALE, Justice.

Mrs. Ruth Jenkins sued Mesdames Haswell and the City of Bryan for damages on account of injury to her merchandise and the loss of business profits, alleging that such damages were proximately caused by the negligence of the defendants. The Haswells were the owners of a two story brick building situated on Main Street in the City of Bryan. Mrs. Jenkins was the owner and operator of a hat shop located on the ground floor of the building, she being a tenant of the Haswells. The City of Bryan owns and operates a system of waterworks through which it sells water to its inhabitants. Mrs. Jenkins alleged that on the night of February 3, 1951, after several days of severely cold weather, the water pipes in the second story of the building burst as the result of a freeze, causing water to escape in large quantities and to run down into the first floor of the building, thereby inflicting the injury of which she complained. She specifically alleged that each of the defendants was negligent (a) 'in failing to empty the water pipes connected with the upper floor of said building prior to or during sub-freezing temperature,' (b) 'in failing to notify plaintiff, Ruth Jenkins, of the water hazard in time for plaintiff to protect her property,' (c) 'in failing to inspect the pipes at the time and place in question,' and (d) 'in failing to lock and secure the cut-off valve or meter box to prevent tampering with said water connection,' and that such negligence in each particular was a proximate cause of her injury and loss.

The Haswells answered the petition of Mrs. Jenkins with a general denial and by a cross-action against the City of Bryan they sought to recover damages from the City on account of injury to their building. As grounds of the recovery sought by them, they alleged that the upper story of their building became vacant in the year 1949, that they notified the City of such vacancy and requested it to cut the water off, that the City thereafter notified them the water had been cut off but in fact the water was never cut off by the City. They further alleged that the damages suffered by Mrs. Jenkins and the injury to their building for which they sought recovery was proximately caused by the negligence of the City of Bryan (1) 'in failing to cut off said water,' (2) 'in failing to notify these defendants that the same had not been cut off,' (3) 'in failing to fix the meter box and the cut-off so that it could not be turned on by any agency,' and (4) 'in failing to ascertain whether the water had been cut off in said upper story.'

The City of Bryan answered the petition of Mrs. Jenkins and the cross-petition of the Haswells with various special exceptions and with general and special denials.

The case was tried without the aid of a jury and resulted in judgment that Mrs. Jenkins take nothing against the Haswells but that she recover $1,733.40 against the City of Bryan, that being the full amount for which she sued; and that the Haswells also recover $903 on their cross-action against the City of Bryan. From the foregoing judgment the City of Bryan has duly perfected its appeal to this court.

At the request of appellant the trial court filed extensive findings of fact and conclusions of law. The court found that appellant was negligent in each of the particulars alleged by Mrs. Jenkins and the Haswells, respectively, and that such negligence was in each particular a proximate cause of the injuries and damages of which they complained. Under the various points upon which its appeal is predicated, appellant says the court's findings of negligence and proximate cause are each erroneous because each is without proper support in the evidence. It contends further that the court, by rendering judgment against it under the circumstances shown by the undisputed evidence, has erroneously imposed upon it a greater burden than that imposed by law in that the court has thereby required it to exercise more than ordinary care and has in effect made of it an insurer against loss and damage resulting from the escape of water from the broken service pipes within the building of the Haswells.

Although Mrs. Jenkins and the Haswells have filed separate briefs, they present substantially the same arguments as to why the judgment appealed from should be affirmed. They say the evidence was sufficient to sustain the findings of the trial court and to show that appellant was guilty of one or more of the specific acts of negligence of which they complained and that such negligence was a proximate cause of the damages suffered by each of them. Mrs. Jenkins contends further that even though the evidence was not sufficient to sustain any of the trial court's findings of specific negligence, since she pleaded general negligence sufficiently to invoke the doctrine of res ipsa loquitur and since the evidence was sufficient to sustain her right of recovery against appellant on that theory, the trial court did not err in rendering judgment in her favor.

Mrs. Jenkins alleged in her trial petition that the instrumentalities by which her damage was caused or produced were in the exclusive possession and control of the 'defendants,' but she did not allege or prove that such instrumentalities were within the exclusive possession, control or management of appellant. On the contrary, the evidence is without dispute that the escape of water which caused the damages of which complaint is made resulted directly from a break or leak in some part of the pipes located within the upper story of the building owned and controlled by the Haswells. Because appellant did not have exclusive possession or control of any portion of the building of the Haswells or of the service pipes or water facilities situated within the building, we do not think the doctrine of res ipsa loquitur is applicable as a basis for any inference of general negligence on the part of appellant in this cause. Henderson v. City of Cross Plains, Tex.Civ.App., 235 S.W.2d 936 (er. ref.). See also: 65 C.J.S., Negligence, § 220(2), p. 987; 38 Am.Jur. p. 996, Sec. 300.

While a municipality which owns and operates a system of waterworks for its own profit is required under the law to exercise ordinary care in the construction, operation and maintenance of its system, and is subject to the same standard of conduct in that regard as any other person, it is not an insurer and it may not be held legally liable for injuries resulting from the operation of such system unless the injuries complained of are proximately caused by its negligence. McQuillen on Municipal Corporations, (3rd Ed.) Vol. 18, Sec. 53.103; 63 C.J.S., Municipal Corporations, § 915, p. 332; 56 Am.Jur. p. 945, Sec. 38; 30 T.J. p. 544, Sec. 301; 14 A.L.R. p. 552 et seq. The doctrine of res ipsa loquitur not being applicable to the facts of this case, a...