City of Fort Worth v. Crawford

• Decision Date: 18 June 1889
• Citation: 12 S.W. 52
• Parties: CITY OF FORT WORTH <I>v.</I> CRAWFORD.
• Court: Texas Supreme Court

12 S.W. 52

CITY OF FORT WORTH

v. CRAWFORD.

Supreme Court of Texas.

June 18, 1889.

Commissioners' decision. Appeal from district court, Tarrant county.

Capps & Canty, for appellant. A. M. Carter, for appellee.

HOBBY, J.

Upon the former appeal in this cause, the judgment was reversed on the ground that the court failed in its charge to submit the proper test as to the appellant's liability, which was held to depend upon its negligence, with respect to the deposit of and burial of the bodies of dead animals, garbage, filth, etc., upon the land adjacent to appellee's home, and which resulted in the injury complained of. 64 Tex. 204. The petition in this case was excepted to on the ground that it did not allege with sufficient certainty that the sickness and suffering and injuries to plaintiff and his family were occasioned from no other cause than the acts of defendant; and did not allege that the city had taken possession of, or assumed control of, the ground on which the deposit of filth, garbage, and dead bodies of animals was made by proper ordinance, or vote of its council, or that the city was acting in the scope of its authority, if it had so taken possession. These exceptions were overruled, and this action of the court is assigned as error.

The petition alleged the due incorporation of the city of Fort Worth; the ownership and possession in 1881, and ever since, by the plaintiff of 17½ acres of land near the city of Fort Worth, to the east, which was the home of the plaintiff, his wife, and children, "of which latter he had several;" that it had been his home for a long time prior to said date, (1881;) that it was free from all noxious and offensive odors, and was a healthy abode for the plaintiff and his family; that in 1881 the defendant was in possession of 10 acres of land in the city limits and close by the plaintiff's premises; that from some time in 1881 the defendant had continually, "wrongfully, negligently, and unjustly cast, carried, and deposited, and caused and carelessly and negligently permitted to be cast, carried, and deposited on said 10 acres of land in its possession great quantities of filth and refuse matter from privies, water-closets, stables, sinks, and streets, and carcasses and other noxious things, too filthy to name or write in a petition." That the defendant failed and neglected to take reasonable and proper action to prevent said deposits from poisoning the air, and so injuring the health of plaintiff and his family, and ruining his said premises; that had the defendant taken reasonable and proper steps, and acted in the premises in a reasonable and proper manner, "as it could and should have done," the injuries to plaintiff and his family would not have occurred. That on account of the sickness of the plaintiff's family, caused by said noxious odors, he was compelled to spend $100 for medicines, and paid doctors $100; that on account of said sickness he and his wife lost a great amount of time valued at $200; that the value of nursing his family during said sickness was $100. It was not necessary for the petition by direct averment to negative the supposition that the sickness and injury to himself and family were occasioned by other causes than those constituting the foundation of the suit. This was necessarily implied from the allegation that his home had, for a long time prior to 1881, been free from all noxious and offensive odors, and was a healthy abode; that the acts of the defendant were the direct cause of the injury is sufficiently stated in the averments, to the effect that his was a desirous and healthy home for plaintiff and his family prior to the time the defendant committed and permitted the nuisances hereinafter complained of, etc., coupled with and followed by the allegations quoted, describing the nuisance; that in 1881 the defendant was in possession of 10 acres of land in the city limits, and close by plaintiff's premises. If the fact of the nuisance created and maintained by it was established by proof, while in its possession and control, its liability would attach; and whether the city took possession by an ordinance or by vote of the council would be a matter of evidence, and it would not, in such a case, be essential to plead the...