City of Stephenville v. Bower

• Decision Date: 17 May 1902
• Citation: 68 S.W. 833
• Parties: CITY OF STEPHENVILLE v. BOWER et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 833

CITY OF STEPHENVILLE v. BOWER et ux.¹

Court of Civil Appeals of Texas.

May 17, 1902.

Appeal from district court, Erath county, W. J. Oxford, Judge.

Action by W. E. Bower and wife against the city of Stephenville. From a judgment for plaintiffs, defendant appeals. Affirmed.

The seventh assignment of error, referred to in the opinion, is as follows: "The court erred in refusing to set aside and hold for naught said verdict and judgment, and granting defendant a new trial therein, and in overruling defendant's motion for a new trial filed in said cause on the 21st day of November, 1901."

Parker, Carlton & Carter, for appellant. Daniel & Keith, for appellees.

STEPHENS, J.

Appellees recovered $500 as damages for personal discomfort and expenses incident to sickness in the family, all resulting from a nuisance created near their residence, in the city of Stephenville. The evidence tended to show and warranted the jury, in finding, that appellant's city scavenger, who was intrusted by the city with the removal of dead animals, garbage, and other filth, negligently and repeatedly deposited the same near the residence of appellees, on the land of a nonresident, instead of on the dumping ground provided by the city beyond its corporate limits, to the great annoyance and discomfort of appellees, and to their damage in the sum allowed by the jury. Merely because the land thus made the practical dumping ground of the city was not under the control of, and did not belong to, the city, was immaterial; and the court did not err in refusing the special instructions of which complaint is made in the first and second assignments of error.

We find nothing in the record making it necessary to give the charge requested as to the effect of the nonenforcement by the city of its penal ordinances, and the third assignment is consequently overruled.

The seventh assignment is too general, and we sustain appellees' objections to it.

The only remaining assignment (the sixth) complains of the verdict and judgment upon the ground that the evidence showed that the offensive deposits were not made or authorized by the city, or by any of its officers or agents. But it, too, must be overruled. As already seen, the evidence warranted the finding that the deposits were made by the city scavenger, to which we may add that, in view of the length of time during which the deposits were made,—running through many months, and even years,—and the frequency and quantity of...