Gotcher v. City of Farmersville

• Decision Date: 07 May 1941
• Docket Number: No. 7760.,7760.
• Citation: 151 S.W.2d 565
• Parties: GOTCHER et ux. v. CITY OF FARMERSVILLE.
• Court: Texas Supreme Court

Page 565

151 S.W.2d 565

GOTCHER et ux. v. CITY OF FARMERSVILLE.

No. 7760.

Supreme Court of Texas.

May 7, 1941.

Motion for Rehearing Overruled June 4, 1941.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Olin Gotcher and wife against the City of Farmersville for death of child by drowning in a sanitary cesspool maintained by the defendant. Judgment dismissing the suit was affirmed by the Court of Civil Appeals, 139 S.W.2d 361, and the plaintiffs bring error.

Judgments of trial court and of the Court of Civil Appeals affirmed.

Kennemer & Armstrong, of Dallas, and Wallace Hughston, of McKinney, for plaintiff in error.

Touchstone, Wight, Gormley & Touchstone, of Dallas, for defendant in error.

ALEXANDER, Chief Justice.

This suit was brought for damages for injuries resulting in the death of a minor child, age seven years, who lost his life by being drowned in a sanitary cesspool maintained by the City of Farmersville for use and benefit of its inhabitants. The trial court sustained a general demurrer to plaintiffs' petition and dismissed the suit. The Court of Civil Appeals affirmed the judgment of the trial court. 139 S.W.2d 361, 362.

The Court of Civil Appeals made the following correct statement of the essential allegations contained in plaintiffs' petition: "It is alleged that the cesspool was an open structure, approximately 20 feet wide, 40 feet long, 9 or 10 feet deep, and divided into four or five compartments. The outside walls extended above the surface of the ground 6 or 8 inches, and no fence, or other safeguard or protection, was maintained around the pool. The compartments were filled with some character of acid used in the decomposition of sewerage, and of such consistency as to destroy such elements or objects as may come in contact with it. The process of decomposition caused a collection of sediment on the top of the acid and liquid, which, after a time, dried, cracked, and presented the appearance of a solid mass. Mrs. Gotcher, accompanied by three of her children, and other parties, went onto the premises * * * in the vicinity of the cesspool to gather persimmons, and, as they approached the pool [Mrs. Gotcher not knowing that the cesspool was located in the vicinity], Richard Neil, one of plaintiffs' minor children, about seven years of age, turned from the path they were traveling, made a dash for the cesspool, jumped into it, and was drowned. It is alleged that defendant knew, or should have known, that children customarily played in the vicinity of the cesspool; thus there was extended an implied invitation for the mother to enter upon the premises, and the deceased to play in the vicinity of the pool; and that, because of its location, construction, and the sediment having the general appearance of a baby pool or sand pile usually employed for the amusement of children of tender years, there was created a public and attractive nuisance which was especially attractive to plaintiffs' child."

The Court of Civil Appeals was correct in holding that the defendant in error, the City of Farmersville, was engaged in a governmental function in the maintenance of its sanitary sewer system, including the cesspool in which the child was drowned, and that by reason thereof the City was not liable for any negligence of its employees in its operation. This Court so held in City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965. The same doctrine was announced in the case of City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872. Plaintiffs in...