City of Van Alstyne v. Morrison

• Decision Date: 05 December 1903
• Citation: 77 S.W. 655
• Parties: CITY OF VAN ALSTYNE v. MORRISON.
• Court: Texas Court of Appeals

77 S.W. 655

CITY OF VAN ALSTYNE v. MORRISON.

Court of Civil Appeals of Texas.

December 5, 1903.

Appeal from Grayson County Court; G. P. Webb, Judge.

Action by M. M. Morrison against the city of Van Alstyne. From a judgment for plaintiff on appeal from the justice's court, defendant appeals. Reversed.

Smith, Templeton & Tolbert, for appellant. Don. A. Bliss, for appellee.

TALBOT, J.

Appellant, in 1901, was a municipal corporation, duly incorporated under the laws of Texas, as a city of 1,000 inhabitants or more, and engaged in operating a system of waterworks and selling and supplying water to the citizens thereof. Appellee resided in said city with his family, and made application to appellant to be supplied with water on his premises for residence purposes and for two horses and one cow. The application was granted, the necessary connections made, and hydrants put in by the city plumber on or about the 27th day of May, 1901. Annual water rates had been fixed by appellant, which, among others, were $12 for a residence, $1.50 for a cow, $2 for a horse, and $1 for each additional horse, payable quarterly in advance. Appellee also had placed in his house a bath tub, which was connected and supplied with water from appellant's waterworks, for family bathing purposes. Appellee paid the first quarterly installment of the annual water rate, and the water was turned on and used by him under this contract until the 1st day of December, 1901, when the water was cut off from appellee's residence by appellant. The appellee paid or tendered the second quarterly installment of the annual water rates, and demanded that he be supplied with water as appellant had agreed to do. This was refused, and thereupon appellee filed suit in the justice's court of Precinct No. 4 of Grayson county against appellant to recover the sum of $95, alleged to be the amount of damages sustained by him for failure on the part of appellant to perform water contract. Upon a trial in the justice's court appellee failed to recover, and appealed to the county court, where he amended his pleadings, still setting up the breach of said water contract on the part of appellant as his cause of action, but itemizing in part the damages claimed, and increasing the total damages sued for to the sum of $200. Appellant answered by general and special exceptions, general denial, and special answer, in which it alleged in substance that appellee had placed in his residence a bath tub, and was using the water furnished him for bathing purposes, without having applied for the same, and without its knowledge, and without having paid anything for the same; that by ordinance or resolution of its waterworks committee a rate of $3 per annum had been fixed for water to be supplied for bathing purposes in a residence, and that appellee knew of such rate at the time he applied for water to be supplied his residence; that the rate of $12 for residence purposes was limited to a family of five in number, and that appellee's family consisted of six persons; that appellee had drained and emptied the waste water from his residence on the streets of said city, and thereby created a nuisance endangering the health of the inhabitants of the city, and that appellant was authorized to abate said nuisance, and the only practical way it had of doing so was by cutting off the water from appellee's residence. A trial was had in the county court, which resulted in a judgment for appellee in the sum of $150, from which judgment this appeal is prosecuted.

Appellant excepted to appellee's amended pleadings filed in the county court, and sought to strike out the same upon the ground that another and different cause of action from that pleaded in the justice's court had been presented. The court overruled this exception, and in this action, we believe, there was no error. It has been repeatedly held by the courts of this state, under our statute on this subject, that new matter may be pleaded in the county court which was not pleaded in the justice's court, but no new cause of action can be asserted. The amendment may go to the extent of increasing the amount of damages sought to be recovered, and adding an additional item of damage involved in the same transaction, but not alleged below. City of Dallas v. McAllister (Tex. Civ. App.) 30 S. W. 452; Von Boeckmann v. Loepp (Civ. App.) 73 S. W. 849, 7 Tex. Ct. Rep. 448. The cause of action in this case was the same in the justice's and county court. In both courts a recovery was sought to be had upon an alleged breach of contract on the part of appellant to supply appellee with water. The allegations in the county court simply specified more particularly the items of damage and enlarged the amount thereof. We believe the law is clearly settled against this contention of appellant in the authorities cited and other authorities of this state.

By various assignments of error complaint is made and urged against the action of the trial court in refusing to allow appellant to show that appellee was the city health officer of appellant; that it was his duty to report to the city council of appellant all nuisances discovered by him in the city; that he had drained and emptied the waste water from his residence on the streets of appellant, and that the same collected and stood in said streets, and became and was a nuisance obnoxious to the citizens of said city and dangerous to their health—all of which was known to appellee; that the streets of appellant in the vicinity of appellee's residence were not graded, and that the city had no sewerage system, and that the only practical way it had of abating the nuisance thus created, short of constructing a sewerage system, was to cut off and stop appellee's water supply, etc. We are of the opinion that there was no error in excluding this and other evidence offered upon this phase of the case. The appellee had entered into a contract with appellant by the terms of which appellant was to furnish him water at the rates fixed and established for a period of one year. If not so expressed in terms, this was the fair and reasonable implication from the nature and purposes of the transaction, and evidently was so understood by the appellant. That appellee drained the waste water from his residence, and emptied it on the streets, and thereby created a nuisance, did...