City of San Antonio v. Diaz

• Decision Date: 02 January 1901
• Citation: 62 S.W. 549
• Parties: CITY OF SAN ANTONIO v. DIAZ.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

62 S.W. 549

CITY OF SAN ANTONIO v. DIAZ.¹

Court of Civil Appeals of Texas.

January 2, 1901.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Rosalino Diaz against the city of San Antonio and others. Judgment for plaintiff against the city, and it appeals. Affirmed.

I. C. Baker and Geo. C. Altgelt, for appellant. Carlos Bee, Ingrum & Davis, and Clark, Ball & Fuller, for appellee.

JAMES, C. J.

An action by Rosalino Diaz for $5,640, alleged to have been sustained by him in the depreciation of the value of his land, sickness, inconvenience, and loss of time, medicine and physician's bills, caused by the acts of appellant in permitting the sewage from appellant's sewer farm to flow into Piedra creek, above appellee's place, and from thence to flow into the San Antonio river, upon which plaintiff's land abuts. The city impleaded its lessees of the sewer farm, Hildebrand & Hamilton, alleging the lease; that Hildebrand & Hamilton, as lessees, had exclusive control of the waters and sewage issuing from its system of sewers, and that they, without the city's consent, diverted the water and sewage into Piedra creek and San Antonio river; that the city had, previous to said lease, constructed suitable filter beds on its said farm, adequate in area and size, into which all surplus water should have been run by said lessees, and the use of which would have prevented the running of sewage into Piedra creek; but said lessees failed and refused to use the same, but upon their own responsibility turned the surplus water and sewage into Piedra creek. Also that defendant never used the land, but that the same has been and is cultivated by said lessees, and, if any sewage was turned into the San Antonio river or Piedra creek to plaintiff's injury, it was the act of said lessees, without defendant's knowledge or consent, and the power was for judgment over against them in case plaintiff recovered of defendant. Hildebrand & Hamilton's exceptions to this pleading were sustained, and they were dismissed. The supreme court, in the case of City of San Antonio v. Pizzini, 61 S. W. 1102, passing on a like pleading, has held that it shows a cause of action.

The proposition advanced under appellant's first and second assignments is that the city is not liable in damages to appellee by reason of the construction and operation of its system of sewers. We have ruled on this question adversely to appellant in said case of City of San Antonio v. Pizzini, 58 S. W. 635, where the question is discussed.

The fifth assignment is not well taken. That a juryman had a damage suit pending against the city, growing out of a totally different subject-matter, is no disqualification, it appearing from his examination that he had no prejudice against the city, and his suit would not influence him.

It is not necessary to discuss the sixth assignment, as we think the repetition of the charge referred to could not have prejudiced defendant.

The seventh assignment complains of the action of the court in excluding plaintiff's assessments of his property for taxation upon the issue of value. This was not error. McLane v. Paschal, 74 Tex. 26, 11 S. W. 837.

The eighth assignment is that the court erred in not permitting defendant to ask witness Hildebrand on cross-examination "what effect the sewer water would have upon the land upon which it was carried beyond the sewer farm; that is to say, upon the value of such lands." The bill of exceptions indicates what was expected to be shown in answer to the question in this language: "Defendant excepted to the ruling of the court, and urged its right to show the injury, if any, is not permanent,...